1994 PLP 37 (SCMR)

RUSTAM S. SIDHWA, J.‑‑‑This judgment will dispose of criminal appeal CrA.137/1990 filed by Sanaullah appellant against the judgment of a learned Division Bench of the Lahore High Court dated 11‑1‑1988 rejecting the appeal of Muhammad Iqbal and others, respondents Nos.1 to 6, in respect of ‑their convictions under sections 302/149, 324/149 and 148, P.P.C., but reducing the sentence's of Muhammad Iqbal, Muhammad Riaz and Muhammad Nawaz respondents. Nos.1 to 3,from death to life imprisonment, and Criminal Appeal CrA. 138/90 filed by Muhammad Nawaz and others, appellants, against the same judgment challenging their conviction and sentences.

2. The brief facts of the case are that on 16‑1‑1985 Sanaullah complainant P.W.8, Mirza Khan deceased and Ghulam Nabi deceased, both cousins of the complainant, Muhammad Yasin P.W.7, resident of Chak No.87 Janubi, and Muhammad Akram (given up P.W.) boarded a tonga from Kalyar Town for District Courts, Sargodha. It was about 12‑45 p.m. When (they reached in front of the Government College, Muhammad Riaz and Muhammad Ansar accused, both armed with Khanjars, and Muhammad Nawaz, Muhammad Sadiq, Muhammad Arshad and Muhammad Iqbal accused, all armed with knives, emerged from a nearby nursery and shouted that they had come and Muhammad Riaz accused raised a Lalkara that they would not spare them alive, Upon this, all the members of the complainant party alighted from the tonga. Mirza Khan ran towards the College side, whereas Ghulam Nabi ran towards the nursery side. Muhammad Riaz, Muhammad Nawaz and Muhammad Sadiq accused followed Mirza Khan, whereas Muhammad Iqbal. Muhammad Ansar and Muhammad Arshad accused chased Ghulam Nabi. Muhammad Riaz accused gave a khanjar blow to Mirza Khan, which landed on his back and he fell down on' the ground. Another blow with dagger was inflicted by Muhammad Riaz accused upon him. Thereafter, Muhammad Riaz, Muhammad Nawaz and Muhammad Sadiq accused gave successive blows to Mirza Khan deceased with their respective weapons. Ghulam Nabi was given a Khanjar blow by Muhammad. Ansar accused, which landed on his back. Another blow was repeated by Muhammad Ansar accused upon him. Thereafter, Muhammad Ansar, Muhammad Iqbal, Arshad, Muhammad Riaz, Muhammad Nawaz and Muhammad Sadiq accused all gave successive blows with their respective weapons to him. Muhammad Yasin P.W.7 tried to. intervene, whereupon Muhammad Nawaz accused inflicted a knife, blow on his shoulder. The witnesses raised alarm and the accused ran away towards Kalyar Town. Mirza Khan and Ghulam Nabi deceased succumbed to their injuries at the spot.

3. The motive for the attack was that about 11 months ago one Muhammad Ashraf son of Pir Bakhsh, who was the real brother of Muhammad Riaz accused, etc., was done to death and in that murder case Mirza Khan deceased etc., along with other five persons were challaned and were being tried. Mirza Khan deceased had been admitted to bail in the murder case and 19‑1‑1985 was the next. date of hearing. In order to take revenge, all the accused. in execution of their common object, had committed the above murders.

4. The statement Exh. PJ of Sanaullah complainant P.W.8 was recorded by Muhammad Anwar Khan, Inspector P.W.

10. He visited the spot, where, after preparing the necessary papers, he sent the dead bodies of Mirza Khan and Ghulam Nabi deceased for post‑mortem examination. He took into possession blood‑stained earth from where the two deceased had been done to death, vide memos Exh. PK and Exh. PL, in' the presence of Sanaullah P.W.8 and Pervez Iqbal (given up P.W.). He recorded the statement of Muhammad Yasin P.W.7 who was there at the spot. After preparing his injury statement, he sent Muhammad Yasin P.W.7 for medical examination.

5. On 16‑1‑1985 at 4‑40 p.m. Dr. Safdar Ali P.W.4 medically examined Muhammad Yasin . .W.7 and found an incised wound 6 c.m. x 4 c.m. x muscle deep on the back of left shoulder and upper arm. The wound was bleeding profusely. The injury was found to be simple and infected within about six hours.

6. On 17‑1‑1985 at 10‑00 a.m. Dr. Muhammad Khalid Qureshi P.W.5 'conducted the post‑mortem examination on the dead body of Mirza Khan deceased and found a stab wound measuring 1" x " x deep on right side of nose, an incised wound 5" x 2" in front of the neck, two stab wounds 1" x 1/3" going deep in front of chest and a stab wound 3" x " going deep on right renal angle. 'fascia trachea, left lung, aorta,, right kidney, small intestines and sternum were found injured or cut. Stomach contained small semi‑digested food and bladder was found to be full of urine. Death was due to stab wounds in front of the chest, which were sufficient to cause death in the ordinary course for nature. All the injuries were anti‑mortem and caused by sharp‑edged weapon. Time between injuries and death was immediate and that between death and post , mortem examination about 24 hours.

7. On the same day Dr. Muhammad Khalid Oureshi P.W.5 conducted 'the post‑mortem examination on the dead body of Ghulam Nabi deceased and found 21 incised wounds of various dimensions on the face, neck, hands, chest and abdomen. The pleura, lungs, peritoneum and liver were found cut. 'Stomach contained small amount of semi‑digested food,. whereas the urinary bladder was found full of urine. Death was found to "be due to shock and haemorrhage as a result of two of the injuries, whilst six others were held to have contributed to haemorrhage and shock. All injuries were anti‑mortem and found to be by a sharp‑edged weapon. Time between injuries and death was immediate and that between death and post‑mortem examination about 24 hours.

8. On 21‑1‑1985 Muhammad Anwar Khan, Inspector P.W.10 arrested Muhammad Sadiq, Iqbal, Ansar and Muhammad Arshad accused.

9. On 23‑1‑1985 Muhammad Anwar Khan Inspector P.W.10 arrested Muhammad Nawaz accused.

10. On 25‑1‑1985 Muhammad Nawaz accused led to the recovery of blood‑stained knife p14 from under a date‑palm tree near the Government College, Sargodha, which was taken into possession vide memo. Exh. PM. Muhammad Sadiq accused led to the recovery of blood‑stained knife P15 from near a kaneer plant near the same College, which was taken into possession vide memo Exh. PN. Iqbal accused led to the recovery of blood,‑stained knife P16 from grass growing near a mulberry tree near the same College, which was taken into possession vide memo Exh. PO. Muhammad Arshad, accused led to the recovery of a blood‑stained knife P17 from a cluster of guava plants near the College Road, which was taken into possession vide memo Exh. PQ.

11. On 26‑1‑1985 Muhammad Anwar Khan, Inspector P.W.10 arrested Muhammad Riaz accused. The same day Muhammad Ansar accused led to the recovery of blood‑stained dagger P18 from near a cluster of date‑palm, trees near the College Road, which was taken into possession vide memo' Ex PR. Muhammad Riaz accused led to the recovery of blood‑stained knife P19 from a hedge near the Divisional Boy Scouts Headquarters, Sargodha, which was taken into possession vide memo Exh. PS.

12. The blood on the weapons' of offence and on the earth recovered from the spot was found to be of human origin.

13. At the trial, the prosecution produced Sanaullah P.W.8 to prove the motive, the said witness and Muhammad Yasin P.W.7 in proof of the ocular account, Sanaullah P.W.8 and Muhammad Anwar Khan Inspector P.W.10 in support of the recoveries and Dr. Safdar Ali P.W.4 and Dr. Muhammad Khalid Qureshi P.W.5 in corroboration of the medical testimony.

14. The learned trial Judge, relying upon the motive, the ocular account and the medical testimony, convicted all the six accused under sections 302/149 PPC on two counts for the murder of Mirza Khan and Ghulam Nabi deceased, under section 324/149, P.P.C. for causing injuries to Muhammad Yasin P.W.7 and under section 148, P.P.C. for rioting. Muhammad Iqbal, Muhammad Nawaz and Muhammad Riaz accused were sentenced to death, whereas the other three were sentenced to life imprisonment under section 302/149, P.P.C. together with fine.

15. In appeal the learned Division Bench of the Lahore High Court maintained the convictions of all the six accused, but altered the sentences of Muhammad Iqbal, Muhammad Nawaz and Muhammad Riaz accused from death to life imprisonment. gP

16. Leave was granted in this case to both Sanaullah appellant/complainant and Muhammad Nawaz and others, appellants/convicts, to examine whether the evidence on the record justified , the findings arrived at by the learned Judges of the High Court.

17. On behalf of Muhammad Nawaz and others, appellants, it is submitted that the presence of Sanaullah P.W.8 at the scene of occurrence at the relevant time was extremely doubtful, for, had he been present there, he would not have been spared by the appellants. It is submitted that Sanaullah P.W.8 was one of the accused challaned in the case relating to the murder of Muhammad Ashraf, while Ghulam Nabi deceased was not so. It is therefore urged that had Sanaullah P.W.8 been present, the appellants would not have pursued Ghulam Nabi deceased, but would have pursued Sanaullah Y.W.8. As regards the testimony of Sanaullah P.W.8, it is submitted that being related to the deceased and inimical to the appellants, his testimony could not be relied upon without proper corroboration. As regards the testimony of Muhammad Yasin P.W.7 it is submitted that there was no satisfactory explanation for his presence at the spot and that his injury appeared to be fabricated. It is submitted that had Muhammad Yasin P.W.7 been injured at the spot at about 1‑00 p.m., he would have wrapped up the injury with some cloth and by the time he appeared before the doctor at 4‑40 p.m., his injury would not have been found "bleeding profusely", as found by the doctor. The fact that his wound was found bleeding profusely only shows that it had been self‑suffered a short while before the medical examination, in order to create evidence for his being present at the spot.

18. On behalf of Sanaullah complainant/appellant it is submitted that Muhammad Yasin P.W.7 and Sanaullah P.W.8 were natural witnesses, that they were travelling with the deceased in the tonga just before the occurrence took place and that their evidence cannot be brushed aside as that of chance or unnatural witnesses. As regards the testimony of Muhammad Yasin P.W.7, it is submitted that he was not friendly or related to the complainant party or inimical to any of the accused and that he had no motive to falsely self‑suffer an injury of no mean dimension such as the one found on his person and to remain in the hospital for over 15 to 20 days for the glory of showing his presence at the spot, if he was otherwise not there. It is submitted that Muhammad Yasiri P.W.7 being a disinterested and independent witness, his evidence with that of Sanaullah P.W.8, coupled with the motive and the medical testimony, was sufficient to bring home the charge of guilt to all the six accused persons. It is lastly contended that both Mirza Khan and Ghulam Nabi deceased were murdered in cold blood and the reasons given by the High Court for not enhancing the sentences of Muhammad Arshad, Muhammad Ansar and Muhammad Sadiq respondents and reducing the sentences of Iqbal, Nawaz and Riaz respondents under section 302/149, P.P.C. on two counts were legally not sustainable and all deserved to be sentenced to death.

19. We have heard the arguments of the learned counsel for the complainant, the convicted accused and the State and have perused the record.

20. The evidence as regards motive has been furnished by Sanaullah complainant P.N.8. Ashraf, a brother of Riaz, Sadiq, Iqbal and Nawaz accused and the paternal‑uncle of Ansar and Arshad accused, was murdered in a gruesome manner about 11 months prior to the present occurrence. In respect of the said murder, Mirza Khan deceased, Sanaullah P.W.8, Zakaullah and Asghar (brothers of Ghulam Nabi deceased) and two others were challaned. The said case was fixed for 19‑1‑1985. Mirza Khan deceased and Sanaullah P.W. 8 had been released on bail. The present occurrence took place on 16‑1‑1985. The motive also stands admitted by the accused persons. Besides this motive, the relations of the parties were strained since the last 30‑32 years as admitted by Sanaullah complainant P.W.8 in his cross‑examination. Since all the accused were closely related to Ashraf who had been murdered earlier, all the accused had a motive to commit the double murder in question, which is the subject of present proceedings.

21. The ocular account in this case is furnished by Muhammad Yasin P.W.7 and Sanaullah P.W.8. Muhammad Yasin P.W.7 is a Pathan by caste, whereas the deceased and the complainant party are Gondals. Yasin P.W.7 had boarded the tonga from Kalyar town at 12‑45 p.m. when he was going towards the District Courts, Sargodha. The complainant party were already sitting in that tongs at that time. The occurrence took place at 1.00 p.m. His version of the occurrence need not be repeated, as the same already stands reproduced in para 2 above. It is clear from his evidence that when the six accused launched their murderous cult upon Mirza Khan and Ghulam Nabi deceased, he attempted to intervene in respect of the attack on the latter, when Nawaz accused gave him a blow with his knife on his left shoulder, whereupon he ran to save himself and reached near Sanaullah P.W.8 and Muhammad Akram (given up P.W.), who were standing at a safe distance seeing the occurrence. He and Muhammad Akram (given up P.W.) remained at the spot after Sanaullah p.W.8 left for the police station. He remained there till the police arrived at the spot, recorded his statement and thereafter sent him to the hospital for media examination. In cross‑examination, he admitted that he resided in Chak No.87/SB, where he was a labourer, and that on the date of occurrence he had come to Sargodha to work as a labourer for one Raja Sarfraz in "yar town. On the day of occurrence he had been directed by the Mistri to see Raja Sarfraz in the Bank in order to fetch cement for the work, so he was going to the Bank in the said tonga, when, on the way, this occurrence took place. He also mentioned that Raja Sarfraz was employed in the United Bank lid. situate near Khayyam Cinema. He admitted that he has seen Muhammad Akram (given up P.W.) for the first time on the date of occurrence. He also stated that he had seen the accused for the first time when they came on the road and stopped the tonga. He also admitted that he remained admitted in the hospital for 15‑20 days immediately after his medical examination. He. denied the suggestion that he had not seen the occurrence, that he was not injured at the spot, that he had been brought by Sanaullah complainant P.W.8 from his village and had made a false statement and that he had self‑suffered the injury on his shoulder. Nothing has been brought out in his evidence to show that he was either related to or thickly familiar with the complainant party or had any enmity or animosity with any of the accused. He has given satisfactory explanation for his presence at the spot, which has been believed by the two Courts below and we find nothing to displace that finding. As regards his injury, it is submitted that it was self‑suffered, for if he had been injured at about 1‑00 p.m. and had been medically examined by the doctor at 4‑50 p.m. it is unlikely that the wound would have been "bleeding profusely". It is therefore suggested that the wound was self‑suffered, a shortwhile before the media examination. We are afraid, we cannot accept this position. Dr. Safdar Ali P.W.4, in answer to a question on behalf of the defence counsel, clarified the matter by stating that though the bleeding was coming out, but not in a gushing manner. The statement of Dr. Safdar Ali P.W.4 appears to be a straightforward and natural statement and the doctor had no reason to clarify the matter against the interest of the accused, unless it was true. Had the said question been put by the Public Prosecutor, one could have said he was trying to fall in line with the prosecution case. However, his answer was to a question put by the defence counsel and we do not see any reason that he had any particular axe to grind in answering the same out of the way in favour of the prosecution. It is therefore clear that Muhammad Yasin P.W.7 was a natural and disinterested witness and his testimony therefore can be accepted with safety, without any corroboration. However, the evidence of Sanaullah P.W.8 supports the testimony of Muhammad Yasin P.W.7 in all material particulars. On behalf of the accused it is submitted that had Sanaullah P.W.8 been present, he would not have been spared, for he was also one of the accused challaned for the murder of Ashraf deceased. It is also submitted that being related to the complainant and inimical to the accused, his testimony should not be relied upon without proper corroboration. As regards the first submission, hypothetically such an inference could be drawn, but since Mirza Khan deceased and Sanaullah P.W.8 were there, who were involved in the case of Muhammad Ashraf deceased, and also Ghulam Nabi deceased, who was a brother of Zakaullah and Muhammad Asghar, who were also challaned in that case. The fact that the accused picked out two persons instead of one, including Mrrza Khan who was involved in Ashraf's case, explains the reason why Sanaullah P.W.8 was not pursued. The testimony therefore of Sanaullah P.W.8 cannot be brushed aside. Since Muhammad Yasin P.W.7 has already been held to be a natural and disinterested witness, corroboration in respect of the testimony of Sanaullah P.W.8 is not required.

22. The medical evidence furnished by Dr. Safdar Ali P.W.4 and Dr. Muhammad Khalid Qureshi P.W.5 clearly shows that Mirza Khan and Ghulam Nabi deceased both were done to death in a brutal manner by sharp‑edged weapons, of the nature which the six accused caused to be recovered, and Muhammad Yasin P.W.7 sustained injury by a similar weapon contemporaneously with the deceased. The number and nature of injuries on the two deceased and Muhammad Yasm P.W.7 clearly show that the number of accursed and the type of weapons used by them were in consonance with that given by the prosecution. The medical testimony therefore strongly corroborates the ocular account.

23. All the six accused led to recoveries of blood‑stained knives and daggers, which recoveries were witnessed by Sanaullah P.W.8, Muhammad Anwar Khan, Inspector P.W.10 and Muhammad Akram (given up P.W.). It is true that Sanaullah P.W.8 is an interested witness, but nothing appears in the evidence of Muhammad Anwar Khan, Inspector P.W.10 to show that his investigation was in any way biased against the accused. He had no motive to falsely plant such a large number of recoveries at random on the. accused, unless they were true. Taking into consideration that the ocular account is supported by a natural and disinterested witness the recoveries in the instant case cannot be brushed aside merely because of the presence of Sanaullah P.W.8 as an interested witness. The recoveries of blood‑stained knives and daggers at the instance of the six accused strongly corroborate the ocular account.

24. The upshot of the above discussion is that the motive, the ocular account, the medical testimony and the recoveries prove the case of the prosecution to the hilt against the six accused. They appear to have been properly convicted and sentenced.

25. There being no merit in criminal appeal Cr. A. 138 of 1990 filed by Muhammad Nawaz and others, the convicted accused, the same deserves to be dismissed.

26. In respect of criminal appeal Cr. A. 137 of 1990 filed by Sanaullah complainant P.W.8 in respect of the enhancement of the sentences of the accused, we would not like to interfere at this stage, as sentences of life imprisonment have been imposed on all the accused. Since three accused attacked one deceased and the other three attacked the second deceased, joined later by the other three, it is difficult to safely sift out those who injured the deceased seriously as against those who did not and the probability that enumeration of specific parts by the witnesses cannot be taken as an exact account of what took place, rye would not like to interfere with the question of sentence in this case. There being no merit in this appeal, we would dismiss the same. N.H.Q./S: 784/S Appeals dismissed.