1986 P Cr (PLP)

On the aforesaid statement, formal F.1.R. Exh.P.D./1 was recorded by A.S.I. Abdul Majid. At the trial, Muhammad Aslam, the first informant, and Ghulam Rasool appeared as eye‑witnesses. The rest of the evidence consisted of recovery of blood‑stained Tokas from Nazir and Sharif and the post‑mortem report. First of all, we will deal with the ocular evidence. Statement of Muhammad Aslam, complainant, was recorded in Gujrat Jail. He was brought in handcuffs before the trial Judge. The handcuffs were removed and he was administered oath. On solemn affirmation, he reaffirmed his statement before the police, which has been referred to above. His version before the trial Court was almost the same, that is to say, that Ghulam Qadir came and asked Nazar Muhammad to talk to him. Nazar Muhammad went out in the street. Then after having talked to Ghulam Qadir he started walking with him. Nazar asked Aslam and others to follow him. They were at a distance of 8/10 Karams. When they reached close to the house of Ghulam Qadir, he caught hold of Nazar from behind. Then all of a sudden, Nazir, Sharif and Aslam, appellants, appeared. All were shouting. Nazir and Sharif were armed with Tokas and Aslam with a stick. Nazir opened the attack with Toka. Nazar was hit in the chin. He fell down. Sharif gave number of Toka blows on the left side of head of Nazar Muhammad. Aslam gave stick blow. Nazar was hit in the right shoulder. He gave another blow at the same place. Aslam and others raised hue and cry. The accused party took to their heels. After describing the main incident, Muhammad Aslam then deposed about the motive which has been referred to above. He admitted to have been prosecuted in the murder case of Muhammad Siddique, brother of Nazir and Sharif. He also admitted that he was sentenced to death and he was a condemned prisoner. This was also admitted by him that he was brought to Gujrat Jail from Mianwali jail so that his statement could be recorded in this case. He said that he had been falsely implicated in the murder case of Siddique the reason being that he was very friendly with Nazar, deceased. The suggestion that he had attempted to persuade Nazir and Sharif, appellants in this case, not to depose against him and they did not agree, was denied by him. However, he admitted that Nazir and Sharif, appellants, were witnesses in the murder case of Siddique. Mst. Razia, wife of Aslam appellant and sister of Nazir and Sharif, appellants, was also a witness. He admitted that he had a grievance because Nazir, Sharif and Razia had deposed against him as a result of which he was sentenced to death; whereas as a matter of fact he was innocent. According to the statement of Ghulam Rasool, he was present at the common‑place of Shadiwal Taraf Ichharke in connection with the marriage ceremony of sister of Akram, a resident of Shadiwal, who was related to him. It was noon time. In his presence Ghulam Qadir came there. He took Nazar Muhammad aside. Both went out. Ghulam Rasool, Aslam and Lal Khan followed them. Nazir, Sharif and Aslam, appellants, appeared there from the front. Nazir and Sharif had Tokas. Aslam had a stick. All the three shouted. Ghulam Qadir caught hold of Nazar from behind. Nazir attacked Nazar with Toka. He was injured in the chin. Nazar fell down. Then Sharif inflicted Toka blow on the head of Nazar. Thereafter Adam gave a stick blow on the right shoulder of Nazar. Ghulam Rasool and others raised hue and cry. The accused ran away towards west. On 9‑5‑1977, Dr. Solomon F. Elahee, Radiologist, Aziz Bhatti Shaheed Hospital, Gujrat performed autopsy of Nazar Muhammad. He found ten injuries. Seven of the injuries were clean cut incised wounds of the following dimensions:‑ (1) 3" x " bone deep with clean cut fracture of underline bone, on left side top of head directed from before backwards. (2) 4" x bone deep with clean cut fracture of underlined skull bones, situated on left side top of head at an angle of 30 degree to the above injury. (3) 4" x " brain deep, on left side of back of head, directed above downwards and inwards, skull bone clean cut. Brain and its covering clean cut Brain matter was lying outside. (4) 5" x 1" brain deep on the left side back of head at an angle of 45 degree to injury No.3. Brain matter was lying out. (5) 5" x 1" bone deep extending to the brain on the back and the left side of head extending from left occipital region to left temple with clean cut injuries of corresponding lobes of brain. Left ear lobe was clean cut. (6) 9" x 1" bone deep, on the left side upper portion back of neck with clean cut fracture of left occipital bone. (7) 3" x 1" bone deep, on lower aspect right side chin with fracture of right mandible. The other three injuries were an incised wound on front of left wrist; multiple purplish black bruises over an area of 2" x 1" over right collar bone and multiple bruises of the same dimension on top of right shoulder. The death in the opinion of the doctor was due to shock and massive haemorrhage ensuing out of injuries 1 to 6, on the head, in which there were concomitant injuries to the brain substance. The injuries were sufficiently grave to cause death individually and collectively. Eight injuries were by sharp‑edged heavy cutting weapon while rest two were by blunt weapon. Sardar Khan P.W., witness to the recovery, stated that Nazir, appellant, got recovered blood‑stained Toka from his Dera. That was taken into possession by the police. He signed the recovery memo. Exh P.H. Similarly, Sharif got recovery blood‑stained Toka Exh . P.2. from sugarcane field. The same was taken into possession vide memo. P.J., which was attested by the witness. The Tokas were found to be stained with blood vide report of, the Chemical Examiner. The appellants in their statements under section 392, Cr.P.C. denied the allegations. They stated that because of enmity with the complainant party, they had been implicated in this case. They further said that Nazar, deceased, was a renowned Badmash of the locality and had enmity with number of persons of the village. He off and on was implicated in number of murder cases. He was killed in mysterious circumstances, without their knowledge, by some unidentified assailant. Learned counsel appearing on behalf of the appellants contended that the prosecution case was not free from doubt. It was an established fact that the parties were inimical to each other. They had been involved in murder cases. Great stress was laid on the fact that when Muhammad Aslam, complainant, was examined even at that time he was accused in a murder case; rather he had been convicted and sentenced to death. According to the learned counsel, his evidence was not reliable, especially when it did not find support from any other independent corroborative evidence According to the learned counsel, recoveries had been planted upon the appellants. Finally, the learned counsel contended that after long drawn criminal litigation, the parties had compromised and it would be in the interest of justice and for amicable settlement of all disputes that the compromise was given effect to and the appellants were acquitted. First of all we will take up the case of Muhammad Aslam and Ghulam Qadir. The role attributed to the former was that he was armed with a stick with which he hit the deceased, after he had bee given Toka blows and he fell on the ground. Whereas the latter was instrumental in the murder of Nazar. He started the ball rolling. Brought Nazar out. Then caught hold of him and thus played an important role in getting him killed. Most of the injuries were incised wounds. Two of the injuries, which were bruises, could be caused by falling on the ground. Therefore there is an element of doubt in favour of Muhammad Aslam, appellant. Similarly, participation of Ghulam Qadir, who was empty‑handed, is also doubtful. There is no definite evidence that he shared the common intention of those who were armed with sharp‑edged weapons. In a case like this, tendency of the prosecution is to rope in as many persons as possible. Therefore, to be on the safe side we give benefit of doubt to Muhammad Aslam and Ghulam Qadir and acquit them. They shall be se at liberty forthwith, if not required in any other case. Solitary injury is attributed to Nazir. He hit the deceased on the chin. None of the witnesses said that he repeated or even attempted to inflict any other injury. Therefore, we don't think that his conviction under section 302, P.P.C. is maintainable. We alter the same to one under section 326, P.P.C. The sentence already undergone by his would meet the ends of justice. He shall be set at liberty forthwith, if not required in any other case. So far as Sharif is concerned, it is established that his brother Muhammad Siddique and his father had been murdered. Nazar was accused in both the murders. He was acquitted in the murder case of the father, while the murder case of Muhammad Siddique was still pending. This shows longstanding and serious provocation. Now that the parties have compromised, it means that they want to forget their past and live peacefully. In view of that, we don't think it is in the interest of justice that Sharif should be hanged. We accordingly commute his death sentence to imprisonment for life. The sentence of fine is upheld. The entire amount of fine shall be paid as compensation to the legal heirs of the deceased. The appeals, murder reference and revision stand disposed of accordingly. H.A.K. Appeal partly accepted.