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Criminal Appeal No. 596 and Murder Reference No. 176 of 1983, heard on 21st April, 1987.

‑‑‑S. 302/34‑‑Ocular evidence, appreciation of‑‑Occurrence at morning prayer time‑‑Accused closely related to complainant side‑‑No difficulty in their identification by witnesses‑‑No motive for prosecution to falsely implicate their close relations‑‑No conflict between medical evidence and eye‑witness account‑‑Defence plea of depriving their mother from inheritance of property of deceased, belied by fact of actual inheritance of property by their mother‑‑Reasons given by witness to motive about his presence, found convincing‑‑No motive to falsely implicate accused even suggested to witness‑‑Witness found independent‑‑Recovery witness found natural and corroborated by Investigating Officer‑‑Eye‑witness account corroborated by evidence of motive and recoveries, held, had proved prosecution case beyond reasonable doubt‑‑Conviction upheld in circumstances.

‑‑‑S. 302/34‑‑Quantum of sentence‑‑Mitigating circumstance‑‑Accused teenagers and in impressionable age at time of occurrence‑‑Beneficiary of property of deceased being their mother‑‑Accused apparently under influence of their mother‑‑Accused having no motive of their own‑ Mitigating circumstance, held, existed‑‑Sentence of death reduced to life imprisonment in circumstances.‑‑[Sentence].

Mansha v. State 1986 S C M R 543 ref.

Ch. Abdul Aziz for Appellants.

M.A.K. Chaudhry for the State.

R.A. Awan for the Complainant.

Date of hearing: 21st April, 1987.

‑Muhammad Akbar, aged 19 years, Ghulam Rasool, aged 17 years and Tahir alias Bagga, aged 15 years, all brothers, were tried by Sessions Judge, Toba Tek Singh, for the murder of their maternal‑grandfather, Rana, aged about 75 years. The learned Sessions Judge vide judgment, dated 25‑9‑1983 acquitted Tahir but Muhammad Akbar and Ghulam Rasool were sentenced to death, fine of Rs.15,000 each or in default to undergo two years' R.I. each. They have challenged their conviction and sentences in appeal. The case is also before us for the confirmation of death sentences of the appellants. Muhammad Bakhsh complainant filed revision challenging the acquittal of their co -accused. All the matters will be disposed of together by this judgment.

2. Prosecution story in brief is that Rana deceased had three sons and three daughters. He owned about 36 acres of land. One of his daughter, namely, Mst. Fatima was married to Ramzan Gujjar. Out of the wedlock she had seven sons including the present appellants and Tahir acquitted co‑accused. Sometime before the occurrence, these three accused came to. Rana deceased and demanded the share of their mother in the agricultural land. On refusal, the accused persons left the village threatening that they would take the share of their mother. A month before the occurrence, the said accused persons brought a pair of bullocks and a plough from their village and started ploughing the land of Suleman son of the deceased which he had purchased. The deceased stopped them on which there was a scuffle but on the intervention of Sooba, P.W.7 and Muhammad Bakhsh complainant in the instant case, the accused persons went back threatening that they would not leave him alive. On 28‑3‑1982, at morning time, the Rana deceased and his family members, Muhammad Bakhsh, Mst. Dani and their guest Farzand were sleeping outside their Haveli. Muhammad Bakhsh suddenly woke up on the noise of his wife, Mst. Dani. He saw all the accused armed with hatchets. He saw Muhammad Akbar accused giving hatchet blow on the head of Rana deceased. Ghulam Rasool accused followed him and gave hatchet blow also on the head of deceased, Muhammad Akbar accused gave another blow which also landed on the head of Rana deceased. Muhammad Bakhsh P.W.8 and Farzand stepped forward. Tahir accused who was armed with hatchet, advanced towards them in threatening mood which terrified the witnesses and they ran into the cattle‑shed and closed the door. After the occurrence, the accused persons fled away. Rana died because of the injuries.

F.I.R. Exh.P.A. was lodged by Muhammad Bakhsh, P.W.8, son of the deceased on 28‑3‑1982. It was recorded by Munir Ali Shah, S.I., P.W.10, who was present at Chak No. 323/G.B. at 7‑30.a.m. Formal F.I.R. Exh.P.A./1 was recorded at Police Station Toba Tek Singh, at 8‑15 a.m. by Nawab Khan, Head Constable, P.W.1. After the registration of the case the Investigating Officer proceeded to the spot and collected blood‑stained earth from the place of occurrence, which was taken into possession, vide memo. Exh.P.K. Blood‑stained cot and blood‑stained bedding were also taken into possession, vide memo. Exh.P.L. The accused were arrested on 1‑4‑1982. On 4‑4‑1982 they led to the recoveries of their respective weapons of offence. Muhammad Akbar accused led to the recovery of blood‑stained hatchet, Killa No. 6, Square No. 28 of Chak No. 518/G.B., which was taken into possession, vide memo. Exh.P.E. Ghulam Rasool accused led to the recovery of blood‑stained hatchet P.3 from a Chhappar, vide memo. Exh.P.F. Tahir alias Bagga accused led to the recovery of blood‑stained hatchet, P.4 from his cattle‑shed, which was taken into possession, vide memo. Exh.P.G. All the recoveries were effected on 4‑4‑1982. The recoveries witnesses were Mahboob Ahmed, P.W.6 and Muhammad Ibrahim (not produced) apart from the Investigating Officer, Munir Ali Shah. He also recorded the statements of the eye‑witnesses and then challaned all the accused.

On 28‑3‑1982 at 4‑00 p.m. Dr. Syed Shamshad Hussain Tirmizy, conducted the post‑mortem examination on the dead body of Rana deceased and found four injuries. Injuries Nos. I to 3 were on the left temporal bone and frontal bone of the deceased which was cut through and through. Injury No. 4 was on the left side of the face of the deceased and was simple in nature. According to the opinion of the doctor, injuries Nos. I to 3 were fatal in nature.

4. The prosecution in support of its case produced ten witnesses in all. The eye‑witness account has been furnished by Muhammad Bakhsh and Mst. Dani, P.Ws. 8 and 9 respectively. They are sons and daughter‑in‑law of the deceased. The motive for the commission of the offence has been proved by Sooba, P.W.7. The recoveries have been proved by Mahboob, P.W.6 and Munir Ali Shah, P.W.10. The investigation was conducted by Munir Ali Shah, S.I., P.W.10. The other witnesses are of formal nature.

5. The accused at the conclusion of the trial were examined under section 342, Cr.P.C. They denied all incriminating‑circumstances against them. They accepted their relationship inter se as well as with the deceased and the eye‑witnesses. They further stated that the deceased wanted to distribute his property amongst his sons and daughters but the sons of the deceased were against it. They further stated that the deceased was done to death by some one during the night and the complainant falsely involved them in this murder so that the share of land may not be given to them.

The learned Judge while convicting the appellants had relied upon the ocular evidence, the evidence of motive and the recoveries effected from the accused persons.

6. Learned counsel for the appellants contends that in the instant case, no reliance can be placed on the evidence of the eye‑witnesses because their statements are directly in conflict with the medical evidence. It is submitted that according to the eye‑witnesses the appellants had caused three injuries in all. Post‑mortem report indicates that there were four injuries on the person of the deceased. It is further submitted that all the injuries are so close to each other that it is not possible for two people to cause injuries in such a manner. It is further contended that the time of occurrence in the instant case has not been proved because Muhammad Bakhsh P.W.8 stated that the occurrence had taken place before the morning prayer Azaan and in such circumstances the identification of the appellants was not possible. It is further submitted that no reliance can be placed on the recovery of hatchet, P.2 because Mahboob Ahmed who had witnessed the recovery lived fifty miles away from the place of recovery.

A perusal of the evidence of both the eye‑witnesses indicate that when Muhammad Bakhsh P.W. advanced towards the accused, he was threatened by Tahir alias Bagga co‑accused with hatchet and he ran into the cattle‑shed out of fear. This fact has also been stated by Mst. Dani, P.W.9 that she herself out of fear went in her Kotha. In this view of the matter, the possibility of fourth injury on the person of the deceased being caused by the accused going unnoticed cannot be ruled out. Therefore, in these circumstances we hold that there is no conflict between the medical evidence and the eye‑witness account.

As for the time of occurrence is concerned, Mst. Dani P.W.9 had stated that it was morning prayer's time. Post‑mortem report also indicates that the occurrence had taken place at about 4‑00 a.m. in the morning. Since the accused were very closely related to the complainant side, there could not have been any difficulty in their identification. The defence has not brought anything on the record to prove any motive on the part of the prosecution to falsely implicate the accused who otherwise are so closely related to them.

The defence of the accused that they have been involved in this case, so that the land of the deceased may not be inherited by their mother is also belied by the evidence. It has come in evidence that she did receive her share of the land out of the property of the deceased through inheritance.

Evidence on motive in the instant case has been furnished by Sooba, P.W.7. He is not related to the complainant side. The reasons for his presence near the field where the accused persons tried to take forcible possession of the land are very convincing. He has not been suggested anything for falsely deposing against the accused persons. We, therefore, hold that Sooba, P.W. is an independent witness on whose statement reliance can be placed.

The accused persons were arrested 1-4-1982. They led to recoveries of their weapons of offence on 4‑4‑1982. The recovery memos. were witnessed by one Mahboob Ahmed who admittedly lived fifty miles away from the place where recoveries were effected. The other witness Muhammad Ibrahim who also witnessed the recoveries has been given up as unnecessary. It is in the evidence of this witness that he is the first, cousin of the complainant, therefore, his being present at the time of recovery is not unnatural at all. The recoveries were effected on the 6th day of the occurrence. In such circumstances, his coming to the complainant for condolence is very natural. It was admitted that no person from the place of recoveries was associated with the recovery proceedings. This has been elaborately clarified by the Investigating Officer who had stated that the people of that village were not prepared to become witnesses in the case. This is normal phenomena that people hesitate to come forward and become witnesses. Therefore, we hold that the non- association of any person from the village where the recoveries were effected is not material. We rely upon the statement of P.W.6, Mahboob Ahmed, which is corroborated by the statement of Munir Ali Shah, P.W.10, the Investigating Officer.

7. Relying upon the statements, of the eye‑witnesses which find corroboration by the evidence of motive and recoveries, we hold that the prosecution has proved its case beyond any reasonable doubt, against the appellants.

As for the question of sentence is concerned, we find both the appellants at the time of the commission of offence were teenagers. Muhammad Akbar was aged 19 years and Ghulam Rasool was aged about 17 years at the time their statements under section 342, Cr.P.C. were recorded on 22‑9‑1983 i.e. after about 1‑1/2 years of occurrence. This means that they were about 17‑1/2 and 15‑1/2 years of age respectively at the time of occurrence. This was an impressionable age. It is also in evidence that the mother of the appellants lived with them and if at all land of Rana deceased was to be inherited, the beneficiary was only the mother of the appellants. Both the appellants at the time of the commission of offence were teenagers and it seems that they were influenced by their mother who wanted her share of property from Rana deceased during his lifetime. They had no motive of their own. They acted under influence of their mother. As held in Mansha v. State 1986 SCMR 543, this is a mitigating circumstance.

8. In view of above discussion, we maintain the conviction of appellants under section 302, P.P.C. but reduce their sentences to imprisonment for life each. The sentence of fine and sentence in default of payment is maintained. The sentences of DEATH ARE NOT CONFIRMED. This appeal is dismissed subject to above modification.

S.A./M‑180/L Sentence reduced.

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