P L D 1970 Supreme Court 491 (PLP)

MUHAMMAD YAQUB ALI, J.‑Six persons were placed for trial before the Sessions Judge, Sargodha, namely the five respondents and the co‑accused Qadir Bakhsh, under sec tions 148, 323/149 and 302/149, P. P. C., for rioting in the course of which one Habib was killed and Muhammad Sher was caused injuries. The crime had taken place on the 27th July 1964, at about sunset time on a canal bridge in the area of village Mitha Tiwana, district Sargodha. Besides Muhammad Sher, injured P. W. 13, the occurrence was witnessed by Muhammad Hayat, P. W. 14, who was accompanying the deceased and Baza, P. W. 15, who happened to pass near the bridge on the way back to his dera in village Botala. The testimony of these witnesses was corroborated by the recovery of three blood‑stained hatchets and a blood‑stained kassi at the instance of Fateh Sher, respondent, during the investigation of the case. While blood had disintegrated on two of the weapons, the blood found on the hatchets P. 3 and P. 4 was detected to be of human origin. There was also the evidence of motive against the respondents, who are related inter se and Mst. Amir Bibi, daughter of Mohammad of village Mitha Tiwana, was betrothed since her childhood to Fateh Sher, respondent, her cousin. As she grew up the relations between the two families became strained and Mohammad changed his mind. He eventually decided to give Amir Bibi in marriage to Habib deceased. This was resented by Fateh Sher who held out a threat that unless Habib gave up the idea of marrying his fianc e, he will have to pay very dearly for it. This he indeed did. The marriage between the deceased and Mst. Amir Bibi Was solemnized in Mitha Tiwana in June 1964, as per certificate Exh, P. W., by the Registrar of Marriages. One month and a day later, the five respondents along with Qadir Bakhsh, brother of Ahmad Khan, respondent, way‑laid Habib, deceased, and Muhammad Sher P. W., on the canal bridge near their dera as they were returning from the dera of Ahmad Khan, P. W. 11, after purchasing from him two lambs for a sum of Rs.

44. The deceased and Muhammad Sher were on horse back carrying a lamb each while Muhammad Hayat who had shared the mount with the deceased on the way to the dera of Ahmad was accompanying them on the way back on Toot. As soon as they arrived in the middle of the canal bridge at a distance of about 4 miles from village Mitha Tiwana, the respondents and their co‑accused Qadir Bakhsh who were lying in embush surrounded them from two sides. Fateh Sher, Muhammad Sher and Ahmad Khan were armed with kulharis, Qadir Bakhsh and Ata Muhammad carried dangs and Ghulam Muhammad has a kassi. Of them, Muhammad Sher, Ahmad Khan, Qadir Bakhsh and Fateh Sher brought down Habib from the horse and as he was falling down Fateh Sher gave a hatchet blow on his head followed by a similar blow by Ahmad Khan on the neck, thereafter all the four accused beat him mercilessly. In the meantime, Ghulam Muhammad caught hold of the mare of Muhammad Sher, while Ata Muhammad gave him a dang blow which felled him to the ground, and he gave him five or six more blows with the long as he lay on the ground. Then both of them joined the rest of the accused in the assault on the deceased. After Habib had been done to death the culprits pushed the dead body over the bridge into the canal, Ghulam Muhammad scratched away the trail of blood with the help of the kassi. All the six accused then went away to their neighbouring dera, carrying with them their respective weapons. After the departure of the assailants, Hayat went to village Mitha Tiwana to inform the relatives of Habib deceased, about the incident. On his return Muhammad Sher left for Police Station. Mitha Tiwana, and lodged there the First Information Report, Exh. P. A., at 10 a.m. All the details of the assault and the throwing of the dead body into the canal as well as the names of the two eye‑witnesses were mentioned in the report recorded by Muhammad Feroze, Moharrir Head Constable. P. W.

12. Sikander Khan, S. H. O., P. W. 16, happened to be away in village Hadali in connection with the recovery of unlicensed fire‑arms. A copy of the first information report was accordingly sent to him there through a Foot Constable. On receipt of the report at 1 a.m., Ch. Sikander Khan, S. H. O., left for the place of occurrence at once. Covering a distance of 5 or 6 miles he reached the place of occurrence at 2 a.m., and immediately entered upon investigation. He first inspected the spot and collected blood‑stained earth and human hair from the bridge and made them into a sealed parcel vide Memo. Exh. P. B. There were marks of dragging of the dead body and of scratching of blood on the bridge. He mentioned these facts in his inspection note Exh. P. T. He also took into possession two lambs from near the spot and prepared the Memo. Exh. P. C. Thereafter he recorded the statements of Muhammad Hayat and Baza, P. Ws., who were present at the spot. The statement of Ahmad Khan from whom the deceased had purchased the lambs were recorded on the 29th July 1954, as he lived at some distance from the place of occurrence. The accused were produced before the S. H. O., by Sabir Ali, Member, Union Council on the 29th July 1964, in village Mitha Tiwana. On interrogation, Fateh Sher, accused, led the S. H. O., to his dera and in the presence of Malik Rab Nawaz and Sardara P. Ws., dug out three blood‑stained hatchets P. 2 to P. 4 and a blood‑stained stick P. 5 from the bank of a pond close to his dera. The weapons were made into sealed parcels vide Memo. Exh. P. G. Thereafter, Ghulam Muhammad respondent led to the recovery of the blood‑stained kassi P. 6 from under a manger in his dera. The blood stains on hatchet P. 2, dang, P. 5 and kassi P. 6 had, disintegrated, but the remaining items were on examination by the Chemical Examiner and Serologist to the Government of Pakistan, found to be stained with human blood as mentioned earlier. The trial Judge acquitted Qadir Bakhsh, accused, as no specific injury to the deceased or to Muhammad Sher P. W., was attributed to him. The blood‑stained lathi Exh. P. 5, was held to be with Ata Muhammad respondent. As regards the remaining accused the ocular evidence against them was corro borated by the various circumstances mentioned above. It was contended by the defence that the occurrence had taken place in the darkness of the night and that no one had identified the culprits. Reliance was placed on (1) alleged delay in reporting the matter to the police at 10 p.m., although the police station was only 5 or 6 miles away from the place of occurrence and (2) presence of some roti and dates in the stomach of the deceased which he had taken about one or two hours before his death. The plea was ruled out by the trial Judge as he round no delay in the lodging of the F. I. R. and there was evidence that the deceased had taken roti and dates at about peshiwela before setting out for purchase of the lambs. He thereupon found the respondents guilty of the charges under section 302/149, P. P. C., for the murder of Habib and section 323/149, P. P. C., for causing injuries to Muhammad Sher, P. W., and sentenced them on the first count to trans portation for life each and on the second count to six months' rigorous imprisonment each. Both the sentences were ordered to run concurrently. On appeal by the respondent the High Court acquitted them all on the finding that Habib was killed at night and that no one had witnessed the crime and it was doubtful whether the injuries found on Muhammad Sher, P. W., were suffered by him at the hands of the assailants. Realising that if the crime was committed and the deceased was done to death after he had taken his evening meals, it would have been impossible for Muhammad Sher, P. W. who lived at a distance of 4 miles to come to know of the incident and to have lodged the report at the police station at 10 p.m., in which he gave all the details of the attack and the fact that the dead body was thrown by the assailants in the canal, the learned Judges surmised that there were known cases in which a rider-less horse had gone back to the stable and put the inmates of the house of the master on inquiry. Some discrepancy was also found in the evidence of the witnesses as to the presence of the lambs at the spot. Some had said "what the lambs were tied near the place of occurrence," and the others "that the lambs were grazing near there." This led to an inference in the minds of the learned Judges that the purchase of lambs was introduced "to give the prosecution version a convincing shape." It was ignored however that lambs while tied to a tree or a bush do keep on grazing. The presence of Hayat was discounted as he was not armed with a weapon although he was asked to accompany the deceased on account of fear of the accused persons. As regards Muhammad Sher who was found injured, it was observed "a suspicion had been created about the testimony of Muhammad Sher regarding the injuries on him allegedly borne by him in the criminal trans action." The nature of the injuries suffered by Mohammad Sher were omitted from consideration which left no doubt that they were caused by an unfriendly hand. Dr. Malik Inayatullah, P. W. 14, who examined Mohammad Sher at 6 a.m., on the 28th July 1964, found the following injuries on his person: (1) A contused wound 1 " x 1/8" skin deep on the postro-superior part of the left ear. (2) A contused wound, " x 1/8" skin deep on the left temporal bone, 2" from pinna of the ear. (3) A bruise 2" x 1/3 on the left cheek below the lower left eye lid. (4) An abrasion 1" x 1/3" on the outer aspect of right arm. 4 above the elbow. (5) A bruise 3" x 1" on the right shoulder blade at its super medial angle, (6) Bruise 4" x 1" on the right side of back of chest, 3" from the posterior medium line. (7) A bruise 3" x 1" on the back of chest, 4 " from the post medium line on the right side. (8) A contused wound curved, 1 " x " skin deep on temporal bone of left side, 2f away from the roof of the left ear. Little imagination was required to discount the plea that these injuries were self‑suffered or caused by a friendly hand. Injury No. 8 being in the region of the temporal bone could have easily caused death of Muhammad Sher if a little more force was applied. No one could have balanced the injury in such a manner as to protect against such an eventuality. The learned Judges also considered it significant that there were no hoof marks of restive horses at the spot and that no broken stirrup or leather strap were found there. As both the deceased and Muhammad Sher, P. W. were brought down without much struggle, it was idle to look for broken stirrup and leather straps on the spot. These articles are usually made of very tough material and do not break off so easily as the learned Judges were inclined to believe. The account given in the F. I. R. was also considered doubtful, because no marks of dragging were found on the dead body. It was ignored in this respect that marks of dragging with a trail of blood were found by the S. H. O., at the spot which further supported the version given by Muhammad Sher that the dead body was thrown into the canal. The reasons on which the learned Judges in the High Court based their conclusions were thus neither sound nor supported by any material on the record. On the contrary, there were attending circumstances which fully corroborated the prosecution version that the respondents were responsible for the killing of Habib and causing injuries to Muhammad Sher P. W. Leave to appeal was accordingly granted to the State on the 10th October 1968, to re‑examine the evidence in the case. With the help of the learned counsel for the parties, we have perused the entire record and considered the plea put up by the respondents during the trial. The inevitable conclusion reached by us is that there could be no doubt whatsoever about the presence of Mohammad Sher, P. W., at the place of occurrence. He had suffered injuries caused by unfriendly hands which were contem poraneous with the killing of Habib deceased. Further no one could have given the details of the incident found in the F. I. R., except an eye‑witness, more particularly the act of throwing of the dead body in the canal and the scratching of the trail of the blood from the canal bridge. The learned Judges were quite wrong in considering the presence of the witness as a doubtful fact. This was confirmed by the recovery of the dead body from the canal on the next morning and presence of scratch marks on the bridge as stated in the inspection note Exh. P. T. In case Habib had been done to death in the darkness of night no one would have known the incident till the next morning. The surmise that rider-less horses are known to have gone back to the 'stables and thereby put the relatives of the master on the alert is to say so with respect almost fantastic. The horse could go back to the dera of the deceased, but could not lead his relatives back to the canal bridge where the incident had taken place. The time between the occurrence and the making of the report was only three hours. How could such a remarkable phenomenon 'have taken place, particularly if injuries had also to be caused to Muhammad Sher to put him up as an eye‑witness. We also find no reason to disbelieve the presence of Hayat and Baza who were found by the S. H: O., present on the spot, on his arrival there at 2 a.m. Their statements were recorded on the same night and nothing particular was brought out in their cross‑examination to throw doubt on the version given by them during the trial. Muhammad Sher was a cousin of Habib, deceased, but he had no motive of his own to falsely implicate any one of the accused. Baza as seen was wholly independent. The conclusion that he was a chance witness also had little substance. When crime takes place on a public path the natural witnesses to the crime would be way‑farers and not the residents of nearby abodes. The ocular testimony of Mohammad Sher, Hayat and Yara was‑further corroborated by the recoveries of incriminating weapons, namely, a kassi, a dang and three hatchets, all of which were found to be stained with blood. The blood on some of them had disintegrated, but the fact that these implements were found concealed and do not ordinarily bear stains of blood unmistakably connected them with the crime in this case. Lastly there was the evidence of motive. As mentioned in the beginning the marriage between Mst. Amir Bibi and Habib was performed on the 26th June 1964. A month and a day later, i.e., on the night between 26th and 27th July 1964, the deceased was way‑laid and done to death in a ghastly manner is borne out by the following injuries found on the dead body: (1) Multiple incised wounds all around the face involving upper part of right cheek below the right eye. (2) An incised 3" x 1 " x bone deep on the outer part of right upper arm with fracture of right humerus. (3) An incised wound 3" x 2" x bone deep on the back of right fore‑arm, middle part, muscles were cut. (4) An incised wound 6" x 3" x through and through on the right wrist joint. (5) An incised wound 1" x " x skin deep on the outer side of left upper arm. (6) An incised wound 3" x 1" x bone deep on the outer side of left upper arm. (7) An incised wound 4" x 1" x joint deep on the back of left elbow muscles and bones (ulna, radius and humerus) were cut. (8) An incised wound 4" x. 1 x joint deep on the back of left elbow over apping injury No.

7. The bones were cut. (9) An incises wound 5 x 2 into bone deep on the back of left fore‑arm with fracture of radius and ulna and muscles were cut, and (10) An incised wound 5" x 2 " x through and through on the left wrist‑joint, terminal portion of left hand was absent. The deceased was thus subjected to a concert ed attack by a number of assailants which betrayed a feeling of revenge harboured by Fateh Sher respondent and his relatives who had joined him in the attack. We have emphasised this feature of tile case, because the nature of the assault and the motive which prompted the accused persons called for deterrent sentences. Even otherwise the ordinary penalty for murder provided by law is death and lesser sentence may be awarded only if there be some mitigating circumstance. This was, however, a case in which every single circumstance attending upon the crime aggravated the offence of the culprits rather than to mitigate it. The Sessions Judge, therefore, erred gravely in awarding the sentences of transportation for life each to the respondents. However, as the State did not appeal against the imposition of inadequate sentences we do not feel called upon to award the extreme penalty of death to the respondents. In the result we allow the appeal and setting aside the order of the High Court restore the convictions and sentences imposed by the Sessions Judge, Sargodha, on the five respondents. S. Q. Appeal allowed.