1986 P Cr (PLP)

Muhammad was found to have suffered five simple injuries with blunt weapon. Mughla was found to have suffered two simple injuries blunt weapon. According to the doctor, he did not find any injuries on the person of Malla.

12. The prosecution at the trial examined, in all fourteen witnesses, including Dr. Muhammad Sadiq (P.W. 12), the summary of whose evidence has been noted above. Riyasat Ali, Sarja and Nasir Ali, named in the F.I.R. to have reached the spot and witnessed the occurrence and P.Ws Arif son of Pir Muhammad, Muhammad Din, Arif son of Kamir, Shahbaz and Muhammad were given up as having been won over. Reports of the Chemical Examiner and those of the Serologist were also tendered in evidence. It may be noted here that although the Serologist had giver; positive opinion about the blood‑stained earth having been found stained with human blood, but no opinion was expressed of the weapons of offence as the blood thereon, was found disintegrated.

13. Complainant Kala (P.W. 9) and Muhammad Hayat (P.W. 10) deposed the eye‑witness account. Kala while deposing the motive for the occurrence, mentioned the F.I.R. narrated the occurrence, giving details of the injuries cause by the appellants to him, the three deceased and Muhammad Hayat P.W. (P.W. 10). However, while stating about the ejectment of the accused, by Ghulam Miran from the land, he stated that it was through a legal process and he alongwith deceased Mathela and Amir had supporter Ghulam Miran when he took possession of the land. From the details of the injuries given by him, it appears the Mathela was given injuries by Riyasat, Ishaq, Khizar Hayat, Muhammad and Mughla with their weapons. Some of them had repeated the blow while others had not. Muhammad Amir deceased was caused injuries by Shana, Jhana, Akbar, Ashraf, Khizar Hayat, Malla, Muhammad and Mughla appellants with their respective weapons. Some of them had repeated the blows while the others had not. Khizar Hayat deceased was caused injuries by Altaf, Mughla. Malla and Muhammad. In his case, almost, all had repeated the blows. Kala complainant was given injuries by Riyasat, Ishaq and Khizar Ishaq, out of them, had repeated the blows. Muhammad Hayat (P.W. 10) was given injuries by Ashraf, Akbar. Ishaq, Shana and Umar Hayat, with the respective weapons. Muhammad Hayat (P.W. 10) has corroborated the account of the occurrence and the details of the injuries given by Kala (P.W. 9). He also stated that injuries were inflicted upon them from wrong sides of the hatchets as well. Some discrepancies of minor nature regarding details of injuries narrated by these witnesses have been brought out during cross- examination by way of confrontation with their previous statement The new fact stated by both the witnesses at the trial is the examination of the injuries suffered by the accused during the occurrence. In this connection both of them, stated, that they had given injuries with Sotas to the accused in self‑defence. On confrontation, it was found that neither Kala P.W. had stated this fact in the F.I.R. nor Hayat P.W. was found to have state this fact in his statement (Exh. D.A.), recorded under section 161, Cr.P.C. Hayat in cross‑examination specifically stated that they had given blows to Akbar, Jhana, Khizar, Muhammad and Ishaq. He also stated that none of them was carrying sharp‑edged weapon. However, about Kala P.W., he stated that he was holding a Sota with broken summ. It has also been brought on record during cross‑examination of Kala P.W. 9 that Amir and Khizar deceased had cut right shoulder of Mughla accused, with hatchets in an earlier occurrence for which deceased Mathela and Amir alongwith Riyasat, Arif and Hayat P.Ws. as well as Yaqub, brother of Akbar accused, were challaned. It has also been stated by P.W.9 in, cross‑examination that Yaqub, brother of Akbar and Ashraf accused, who was engaged to the daughter of Jhana accused had become their partisan, as a result of which Jhana had broken the engagement. The witness stated that Jhana might have said two days before the occurrence that now Mathela would give his daughter in marriage to Yaqub. However, the suggestion, put on behalf of the accused that it was due to this reason that Mathela and Amir deceased had given beating to Jhana when he was passing in front of their Behk with Dangs and hatchets and had dragged him to Khizar deceased, where he alongwith Hayat were also present was denied. The next suggestion that on the alarm raised by Jhana, Akbar, Ishaq, Khizar, Muhammad and Mughla accused, armed with Sotas and hatchets had come to their Behk to save Jhana, where fight took place and they caused injuries to them it self‑defence has also been denied. The suggestion put to Hayat P.W. that they had waylaid Jhana, had given him beating and had took him to their Behk, has been denied by him. Further suggestion that Akbar, Ishaq, Khizar, Muhammad and Mughla had gone there to rescue Jhana, whereupon Mathela had given a hatchet blow on the head of Ishaq, where after the accused had acted in self‑defence, has also been denied by him. Ghulam Miran while appearing as P.W. 6 corroborated the statement of the complainant about his having ejecting Muhammad and Mughla accused from his land with the help of Kala complainant, Amir and Mathela deceased. Bahedur (P.W. 8) deposed of having witnessed Amir and Mathela deceased giving fist blows to Jhana and of his having got them separated with the help of Sarja and Kala complainant. Muhammad Khan, Inspector (P.W. 14) gave an account of having recorded the statement of the complainant, of having prepared the injury statement of the injured P.Ws. as well as of the three deceased, of having prepared the inquest reports, of having arrested the accused, and of having recovered the weapons of offence at the instance of the accused. In the cross‑examination, he denied the suggestion that Mughla had given him his medico‑legal report for registration of case. It has also been stated by him in cross‑examination that the accused and the complainant party lived in the same Ihata, in the separate rooms.

14. All the appellants during their statements under section 342 Cr.P.C. denied the prosecution allegations as well as the recoveries and pleaded innocence. Akbar, Khizar Hayat, Ishaq, Mughla, Jhana and Muhammad, however, admitted their presence at the spot. All these appellants while explaining injuries on their persons stated that they were belaboured by Mathela, Amir and Khizar Hayat (deceased), Muhammad Hayat and Kala P.Ws. Appellant Jhana in answer to the question, 'Have you anything else to say?' stated as follows:‑ "Muhammad Yaqoob my sister's son went on the side of Mathela deceased and others. I had promised to marry my daughter with him, but on his changing sides, I refused to give my daughter to him. Two days prior to the occurrence, I openly declared not to marry my daughter to him and further declared that Mathela deceased should give him his daughter. Due to this Mathela, Muhammad Amir, Khizar Hayat and Kala made a Thara and waylaid me. When I was passing by the side of the field of Methela deceased, they stopped me and began to beat me in the field of Msthela. Mathels deceased gave me Kulhari blow on my left arm. My left arm was fractured and I fell down. In the mean,vhile, Ishaque, Mughla, Akbar, Khizar Hayat and Muhammad came there. Ishaque accused asked them to stop beating but they refused. In the meanwhile, Mathela deceased gave him Kulhari blow on his head and he fell down. They also beat Akbar. Umar Hayat and Muhammad. They tried to rescue us. They were belaboured by them and they also gave them blows in sell'‑defence." All the appellants owned the detailed statement made by Jhana in this connection. It is apparent from the statement of Jhana that apart from him, Ishaq, Mughla, Akbar, Khizar Hayat and Muhammad admitted their presence at the spot while others denied their presence.

15. The learned trial Judge after discussing the prosecution evidence came to the conclusion, that the charge of common object against the appellants was not proved. He held them liable for individual acts. The plea of self‑defence raised by some of the appellants, was also not accepted by the trial Judge. It is on the basis of these conclusions that the learned trial Court convicted the appellants under various heads and awarded various sentences.

16. Learned counsel for the appellants argued: (a) that the statement (Ex.PA) on the basis of which formal F.I.R. (Ex.PA/1) was registered, was admittedly recorded at the spot, as such, the possibility of the statement having been recorded after preliminary investigations and deliberations cannot be ruled out. Learned counsel contended that in view of this petition, the F.I.R. has lost all its sanctity; (b) that the prosecution has failed to prove the motive; (c) that the failure of the complainant to explain the injuries of, five of the appellants in the statement, on the basis of which F.I.R. was registered, makes the veracity of the complainant doubtful. In this connection, learned counsel also referred to the statement (Ex.DA) of Muhammad Hayat (P.W.10) recorded during investigation wherein, he was, also not, found to have given any explanation of the injuries suffered by five of the appellants. Learned counsel contended that the explanation given by these witnesses at the trial was a crude improvement. (d) that the ocular account has been deposed to, by related, interested and inimical witnesses and as such no reliance can be placed on their statements; (e) that the alleged recoveries of weapons of offence do not possess any corroborative value, first, for the reason that recoveries have not been proved through reliable evidence, and, secondly., for the reason that the Serologist had expressed his inability to give positive opinion of the weapons being stained with human blood. Learned counsel contended that the ocular account in fact does not find corroboration from any evidence worth reliance; (f) that the defence version put forth by the appellants is worth reliance and placed in juxtaposition, is more probable than the prosecution version. In this connection, stance of the learned counsel was that the story of Jhana having been given fist blows and of having gone to his Dera after being separated by the complainant and others, while issuing threats, was not correct and that in fact, as stated by Jhana in his statement under section 342, Cr.P.C., Akbar, Khizar Hayat, Ishaq, Mughla and Muhammad had come to the spot on his noise, when he was being belaboured by the three deceased and the two eye‑witnesses and that on their arrival, Ishaq was given injury with a hatchet on head by Mathela and it was thereafter that they had caused injuries to the complainant party in self‑defence, bears semblance of truth; (g) Lastly, it is argued by the learned counsel for the appellants that at best the prosecution evidence discloses the occurrence to be, a free fight and as such Altaf and Khizar Hayat appellants could not be held liable under section 302, P.P.C.

17. Learned counsel for the State, controverted the arguments of the learned counsel for the appellants and defended the judgment of the trial Court.

18. Before embarking upon the consideration of the arguments of the learned counsel for the parties, we would like to discuss an important aspect of the case, which was not agreed to by the learned counsel for the parties. Perhaps they did not consider it important or may be it slipped their notice. Since it is on record, we deem it necessary to record observation about it.

19. The important aspect is, that Muhammad Khan S.I., who had investigated the case, while appearing as P.W. 14, had stated that he had recorded the statement Exh. P.BB of Amir deceased and Exh. PCC of Khizar Hayat deceased at the spot on the first day. In spite of the statement of the S.I., no request was made by the transferring prosecutor for of the Evidences Act, statements the same, the that are on record and on account of the mere lapse on the part of the prosecutor, we cannot bypass them. Reference in this regard can be made to Ghulam Nabi v. State P L D 1963 (W.P.) B J

14. The requirement of law that the writer of the dying declaration should be examined to prove the same also stands complied with. Nevertheless, we feel that the statements Exh. PBB and PCC cannot be considered as evidence against the appellants, for the reason that their authenticity has not been proved. The statements were recorded by Muhammad Khan, S.I. without the opinion of the doctor and without attestation by anyone else. In fact, both the statements were recorded under section 161, Cr.P.C. Although the S.I. in examination‑in‑chief stated that he had recorded the statement but he did not state that he had correctly recorded the statements without making any additions or alterations. No presumption can be attached to the statements under section 161, Cr.P.C. having been correctly recorded unless they are authenticated by the writer. The want of authentication in this particular case was doubly required, for the reason that Muhammad Amir and Khizar Hayat, whose statements they are stated to be, were seriously injured. Muhammad Amir had died the same day, while being carried to the hospital, as a result of injuries. Khizar Hayat died in the hospital. There is no evidence on record to show that he had remained conscious till death. Looking from the point of view that both had suffered mortal injuries, no presumption can be attached, that they were in a fit condition to make statements, at the time, it is claimed that they were recorded. We are, therefore, of the view that statements (Exh. PBB and PCC) cannot be read as evidence against the appellants for safe administration of justice. While coming to this conclusion, we have also taken into account the fact that these statements were not put to the appellants during their examination under section 342, Cr.P.C

20. We will now consider the contentions raised by the learned counsel for the parties. Broadly speaking, the following points in this case are not disputed: ‑‑ (i) place and time of occurrence; (ii) six of the appellants having received injuries during the occurrence; (iii) the fact of no explanation having been given by the complainant about the injuries on five of the appellants in Exh. P.A. and the fact of no mention of the appellant's injuries in the statement Exh.D.A. under section 161, Cr.P.C. of Muhammad Hayat, P.W. 10; (iv) Khizar Hayat deceased being real brother of Kala complainant, Mathela deceased being son of real brother of Kala complainant, Amir deceased being son of sister of complainant and Muhammad Hayat P.W. 10 being son of Amir deceased; and (v) the fact of the parties being related to each other and of their not being on good terms, with each other prior to the occurrence.

21. The F.I.R. registered on the statement recorded at the spot cannot as a rule be taken to have been recorded after consultation and deliberations. Each case has to be considered in the set circumstances of the case. In the present case, we do not feel inclined to agree with the contention of the learned counsel, that the F.I.R. did not bear any sanctity, only for the reason that it was registered on the basis of statement which was recorded at the spot. The reason lies in the other contention of the learned counsel for the appellants, that the F.I.R. did not bear explanation of injuries on five of the appellants. Had the statement been recorded by the S.P. after preliminary investigation in collaboration with the complainant, the fact of five persons from the accused side having suffered injuries would have been mentioned in the F.I.R. with some explanation. We find it difficult to believe that if the S.I. had held any preliminary inquiry he would not have come to know of this.

22. The argument of the learned counsel that since the deceased Mathela and Muhammad Amir had nothing to do with the land of Ghulam Miran, the appellants could have no grievance against them, has not impressed us. Ghulam Miran, who appeared as a P.W. categorically stated, that he had taken the possession of land from Mughla and Muhammad with the help of Kala complainant at the time of their ejection and they had exchanged abuses with Kala on that count. This corroborates the statement of Kala that the accused were annoyed with them for having helped Ghulam Miran at the time of their ejection by him. We feel hesitant to believe that Ghulam Miran, who was 75 years of age,, would have opted to become a false witness in a case of this nature. The alternative argument of the learned counsel in this regard that since Ghulam Miran stated that he had ejected Mughla, etc. through legal means and as such the accused could have no grievance, again does not negate the prosecution case, for the reason, that the fact that Ghulam Miran had to resort to legal course for ejectment of Mughla, etc. showed that they were not prepared to vacate the land willingly. The incident of Mughla having been manhandled by Mathela and Muhammad Amir short while prior to the occurrence, also lends support to the prosecution case that the relations between the parties were strained. Yet the other thing which speaks about unhappiness of appellants with the complainant party is the fact, brought out in cross-examination of Kala that in an earlier occurrence Amir and Khizar deceased had cut the right shoulder of Mughla with a hatchet'.

23. Kala and Hayat, who have deposed the eye‑witness account are no doubt related inter se and to the three deceased. However, their evidence cannot be ruled out, or, that account alone. Their presence at the spot has not only been admitted by the appellants' side but they were found to have suffered injuries also. Their injuries have been mentioned in the F.I.R. which was lodged promptly. Thus there can be no doubt of their having witnessed the occurrence. We are conscious of the fact, that they had not explained the injuries suffered by five of the appellants at the time of registration of case and during investigation. still we are of the view that their statements cannot be rejected outright, particularly so, when their depositions about injuries suffered by them and the' injuries suffered by the three deceased, finds corroboration from the medical evidence. Failure on their part to explain the injures on five of the appellants during investigation may be for the reason, that they had suffered, quite a large number of injuries themselves, one of their close relation had died at the spot while the other two were in a precarious conditions, or may this be a case of 'adversary proceeding' to minimise one's own part in the incident. We have borrowed this phrase from judgment of the Supreme Court of Pakistan in Syed Ali Bepali v. Nibarao Mollah, etc. P L D 1962 S C 502.

24. The evidence of recoveries of weapons of offence although suffers from lack of proof of their being stained with human blood, but it is there. It may not be strong piece of corroboration but its corroboratory value cannot be ruled out altogether.

25. Since we have not rejected the prosecution evidence, we think, stage has arrived, to examine the prosecution case in juxtaposition with the appellants versions, so as to find out, whether defence version is more possible or is at least more probable than the prosecution version?

26. The explicit position taken by Jhana appellant in his statement under section 342, Cr.P.C. is, that he was attacked by Mathela, Muhammad Amir and Khizar Hayat deceased, alongwith Muhammad Hayat and Kala P.Ws, armed with Kulharis, etc. by the side of field of Mathela deceased and when his co‑accused Ishaq, Mughla, Akbar, Khizar Hayat and Muhammad came there and Ishaq asked them to stop beating him, he was also given a Kulhari blow by Mathela on the head and it was, thereafter that Akbar, Umar Hayat and Muhammad in order to rescue them, had belaboured the other party in self‑defence. This stance, when examined, in the light of the fact that three persons ‑on the complainant side died as a result of this occurrence and two had suffered injuries, seems to be most improbable, rather unbelievable. We find it hard to believe that four persons, i.e. Mughla, Akbar, Umar Hayat and Muhammad would have been able to inflict such a large number of injuries to five persons, resulting in the death of three of them, particularly when two of their companions had already suffered injuries and their adversaries, who were five in number, were pot only fully armed, but had taken precedence in launching attack and had succeeded in injuring two persons without suffering single injury.

27. Having assessed both the versions, we are of the clear view that the version put forth by the appellants does not make the store of the prosecution improbable in any manner. In fact, we are of the clear view that it does not possess any weight. The number of injuries suffered by the complainant party in comparison to the number of injuries suffered by the accused side, has also weighed with us if, coming to the above conclusion'. The complainants had suffered 96 injure while accused party had suffered 23 injuries, 22 of them were simple.

28. As a result of the above discussion, we are of the clear vie~ that all the appellants had taken part in the occurrence, which resulted in the death of three persons and injuries to the two.

29. The arguments of the learned counsel that since the occurrence had taken place at 8 a.m. in the month of Ramazan, the story of the prosecution that the complainant and his companions were taking their meals, when they were attacked cannot be believed, is devoid of any force. Although Muslims are expected to keep fast during the month of Ramazan and so it was expected from the complainant and his companions as well, (in fact one of them Mathela deceased was fasting) nevertheless, the prosecution case cannot be thrown away for non‑observance of the fast by the two eye‑witnesses and the two deceased. We would like to mention here that Kale P.W. has given explanation that they were taking meals secretly as they had to work the whole day.

30. For the reasons enumerated above, we do not find any merit in the appeal. The same is dismissed. Death sentence awarded to Altaf and Khizar Hayat is confirmed. The appellants, who are on bail, shat be arrested and lodged in jail for undergoing their remaining sentence. H.A.K. Appeal dismissed.