1987 P Cr (PLP)

AFRASIAB KHAN, J.‑‑The appellants, Falak Sher son of Wahab, armed with Toki F.8 and Sheri son of Nawab armed with Sota P.9, were convicted and sentenced for the murder of Shameer alias Shama, deceased, in furtherance of their common intention, under section 302/34 of the Pakistan Penal Code, by the learned Additional Sessions Judge, Toba Tek Singh vide his judgment, dated 14‑4‑1984. The appellant, Falak Sher was sentenced to death whereas Sheri, appellant was sentenced to life imprisonment with a fine of Rs.10,000 each and in default thereof they were to suffer further rigorous imprisonment for one year each. The learned trial Court observed that the benefit of section 382‑B, Cr.P.C. shall be available to the appellant Sheri. However, the learned trial Court acquitted Mst. Bakhi and Wahab, co‑accused by giving them the benefit of doubt. The appellants, Falak Sher and Sheri, have challenged their conviction and sentence by filing the appeal whereas the murder reference (M.R. No. 95 of 1984) under section 374, Cr.P.C. has also been sent by the learned trial Judge for the confirmation of the death sentence awarded to Falak Sher appellant. The complainant, Bukhtawar son of Sultan has also filed a Criminal Revision (Cr.R. No. 754 of 1984) under section 439, Cr.P.C. praying therein that respondents Nos. 1 and 2 be dealt with in accordance with law whereas the sentence of respondent No. 3 Sheri be enhanced to that of death. We propose to dispose of the criminal appeal, murder reference as well as the criminal revision together by our consolidated judgment.

2. Briefly mentioned, the facts of the prosecution case as stated by the complainant, Bukhtawar P.W.5 are that early in morning on 24‑12‑1982, he alongwith Waryam son of Murad P.W. 7 resident of Chak No. 718/G.B. and Sham' r Khan alias Shama, deceased, son of Bukhtawar complainant went to see Riaz who was lying sick in Chak No. 719/G.B. Shamir Khan alias Shama went to Nabi Ahmad, Lambardar in the same Chak in order to settle the account of sugarcane while riding on his bicycle at about 10‑30 a.m. thereafter Bukhtawar complainant, Muhammad Ashraf and Waryam P.Ws. left Chak No. 719/G.B., after visiting ailing Riaz, for their Chak No. 718/G.B., and when at about 12 noon they reached the Chowk of Chak No. 719; G.B. adjacent to the mosque, they saw that Shamir Khan alias Shama, deceased was coming towards them on his bicycle. The appellant Falak Sher armed with Toki P.8, Wahab, acquitted co‑accused, armed with Sota' P.10, Sheri appellant armed with Sota P.9 and Mst. Bakhi, acquitted co- accused armed with Phahora P.7 came shouting that today they will revenge the death of Muhammad Yar. They opened an attack upon Shamir Khan alias Shama, deceased. Falak Sher, appellant, gave a Toki blow which hit the deceased on his head. On the receipt of the injury, the deceased fell down from the bicycle. The appellant, Sher, caused the second Sota blow which hit the deceased on his head. On the fall of the deceased, Falak Slier, appellant gave successive Toki blows to the deceased I as a result of which the bone of left leg of the deceased was cut through and through. Thereafter, the appellant, Sheri and Mst. Bakhi acquitted co- accused gave further blows to the deceased as a result of which his head was crushed. The occurrence in hand was witnessed by Bukhtawar, complainant P.W. 5, Muhammad Ashraf P.W.6 and Waryam, P.W.7. The deceased died at the spot after a few minutes.

3. The motive as set up by the prosecution is that 2‑3/4 years ago in the murder case of one Muhammad Yar son of Gumma, the deceased Shamir Khan alias Shama was challaned and tried but was later on acquitted. The aforesaid Muhammad Yar was the real brother of Mst. Bakhi and Sheri, appellant. He was the real nephew of Wahab and cousin brother of Falak Sher, appellant.

4. Muhammad Akram P.W.8, S.H.O., Police Station Pir Mahar recorded the F.I.R. Exh.P.J. on the statement of Bukhtawar P.W.5 on 24‑12‑1982 at about 2‑00 p.m. The witness visited the place of occurrence on the same day and prepared the inquest report Exh.P.K. and injury statement Exh.P.K./I of the dead body of Shamir Khan alias Shama, and sent the a same for post‑mortem examination under the escort of Nazar Hussain constable P.W.1. Blood‑stained earth was collected and was placed in a sealed parcel vide memo. Exh.P.C. which memo. was attested by Nazar Hussain P.W.1 and Shakir Khan P.W.4. Bicycle P.6 was taken into possession from the place of occurrence vide memo. Exh.P.D. Blood-stained last worn clothes of the deceased, Jersey P.1, Kurta P.2, Waskat P.3, Chadar P.4 and foot shoes P.5/1‑2 were also taken into possession vide memo. Exh.P.A. on 25‑12‑1982. All the four accused were arrested by the witness on their appearance before him. Phahora P.7 was produced by Mst. Bakhi, acquitted co‑accused which was taken into possession vide memo. Exh.P.E. and the same memo. was attested by Nazar Hussain P.W.1 and Shakir Khan P.W.4. Falak Sher, appellant led to the recovery of Toki P.8 from his residential house in Chak No.719/G.N. which was taken into possession vide memo. Exh.P.F. The appellant Sheri led to the recovery of blood‑stained Sota P.9 from his residential house in Chak No. 719/G.B, which was taken into possession vide memo. Exh.P.G. Similarly, Wahab, acquitted co‑accused, led to the recovery of blood‑stained Sota P.10 from his residential house in Chak No. 719/G.B. which was also taken into possession vide memo. EXh.P.H. This recovery memo. was also attested by Shakir Khan P.W.4 and Nazar Hussain P.W.l. Site plan Exh.P.J./1 was prepared by the witness. He also got prepared site plan Exh.P.B. and Exh.P.B./1 in respect of the place of occurrence through Muhammad Ibraheem Draftsman P.W.3.

5. Dr. Ghulam Ahmad Medical Officer, Civil Hospital, Kamalia District Toba Tek Sing P.W.9 conducted the post‑mortem examination on the dead body of Shamir Khan alias Shama on 25‑ 12‑1982 and found the following injuries on the person of the deceased:‑ (1) A contused wound 7 c.m. x 1 c.m. x skull deep shaped on the frontal region near forehead in its lateral part. (2) A contused wound 2‑1/2 c.m. x 1 c.m. x skull deep on the left frontal region 1‑1/2 c.m. above injury No. 1. there was fracture of left frontal bone. (3) Incised wound 8 c.m. x 2 c.m. x bone deep on the back and right side of head. The underlying right parietal and occipital bones were cut. (4) A contused wound 10 c.m. x 2 c.m. x skull deep just medial to injury No.

3. The underlying occipital and right parietal bones were fractured into pieces and brain matter was coming out. (5) A contused wound 12 c.m. x 2 c.m. x skull deep on the occipital and temporal region on right side of head. There was fracture of occipital and right temporal bones. (6) An incised wound 12 c.m. x 3 c.m. x bone cut on the outer surface of left ankle. The bones of ankle were cut through and through and the foot was adherent with the leg by skin and soft tissues on medial surface. (7) An incised wound 3 c.m. x 1 c.m. x bone cut on the outer surface of left leg 3 c.m. above injury No.

6. The fibula bone was cut. The left frontal, right parietal, right temporal and occipital bones were fractured. The brain matter was torn and coming out through injury No.

4. In the opinion of the doctor P.W.9, the death took place because of shock and haemorrhage due to injuries especially injury Nos. 2, 3, 4, 5, 6 and 7 which were sufficient to cause death in the ordinary course of nature. All the injuries were ante‑mortem. Injuries Nos. 3, 6 and 7 were caused by sharp‑edged weapon and rest by blunt weapon. The report of the Serologist on the blood‑stained articles was found positive vide memo. Exh.P.M.

6. Eye‑witness account of the occurrence was provided by Bukhtawar complainant P.W.5, Muhammad Ashraf P.W.6 and Waryam P.W.7. Bukhtawar P.5 deposed that Wahab acquitted co‑accused is father of Falak Sher, appellant. Sheri, appellant is his nephew and Mst. Bakhi, acquitted co‑accused, is the sister of Sheri appellant. The witness stated that he alongwith Waryam P.W.7 and Shamir Khan alias Shama, deceased, went to Chak No. 719/G.B. to see ailing Riaz. Shamir Khan alias Shama, deceased had a bicycle. He further deposed that Shamir Khan alias Shama, deceased, thereafter went to Nabi Ahmad, headman of the village to settle the account of sugarcane at about 10‑30 a.m. on the day of occurrence. At about noon time Bukhtawar complainant P.W. 5, Muhammad Ashraf P.W.6 and Waryam P.W. 7 started to come back from Chak No. 719/G.B. towards their own Chak and when they reached near the mosque adjacent to Chowk in Chak No. 719/G.B., they saw Shamir Khan alias Shama, deceased, coming on his bicycle towards them from the northern side, When the deceased crossed the residential Ahata of Falak Sher, appellant, Falak Sher and Sheri appellants alongwith other acquitted co‑accuser's emerged from their Ahata. They shouted that they would take the revenge of the murder of Muhammad Yar. Falak Sher, appellant, was armed with a Toki P.8, Wahab acquitted co‑accused and Sheri appellant were armed with Sotas P.9 and P.10, whereas Mst. Bakhi, acquitted co‑accused was holding a Phahora P.7. Falak Sher, appellant, opened an attack by giving a Toki blow on the head of Shamir Khan alias Shama, deceased. The deceased fell down. Then Sheri, appellant, caused a Sota blow whici: landed on his head. Wahab, acquitted co‑accused inflicted Sota blow to the deceased. Falak Sher, appellant gave multiple blows on the left leg of the deceased. All the accused gave blows with their respective weapons on the head of the deceased. Muhammad Ashraf P.W.6 and Waryam P.W.7 supported the complainant P.W.5 Bukhtawar in all material terms. About the motive the witness stated that 2‑3/4 years ago prior to the present occurrence, Muhammad Yar, a close relative of the accused, was done to death and in that murder case Shamir Khan alias Shama, deceased, was challaned and later on was acquitted. The deceased Muhammad Yar, was the brother of Sheri, appellant and Mst. Bakhi, acquitted co‑accused and cousin‑brother of Falak Sher, appellant.

7. The appellants Falak Sher and Sheri and the acquitted co‑accused while making statements under section 342, Cr.P.C. denied the prosecution allegations. Falak Sher, appellant, admitted that Wahab was his father, Sheri was his cousin and Mst. Bakhi was also his cousin. He also admitted the previous occurrence in which occurrence Muhammad Yar son of Ghuma was murdered and Shamir Khan alias Shama, deceased of the present case was challaned who later on was acquitted.

8. Mr. Aftab Farrukh, learned counsel for the appellants at the very outset submitted that the prosecution witnesses interested are being closely related to one another. The learned counsel maintained that the eye witnesses P.W.5, P.W.6 and P.W.7 being closely related to the deceased were expected to intervene physically so as to save the deceased from the attack of the accused party. But they did not come forward to help the deceased to save his life. It is next contended that the deceased Shamir Khan alias Shama. who was acquitted recently in a murder case passed through the residential house of the appellants which fact might have given provocation to the appellants and lot of annoyance to them. The learned counsel also argued that two accused out of four have been acquitted who were also attributed injuries to the deceased and, therefore, it cannot be said which injuries were attributable to the appellants. Lastly, the learned counsel pleaded for the lesser penalty.

9. The learned counsel for the State has supported the conviction and sentence of the appellants.

10. After hearing the learned counsel for the parties, we have come to the conclusion that the prosecution has proved its case against the appellants beyond any reasonable doubt. The presence of Bukhtawar complainant P.W.5, Muhammad Ashraf P.W.6 and Waryam P.W.7 at the place of occurrence is proved. Bukhtawar P.W.5 has supported the prosecution version in all material terms. The witness was subjected to lengthy cross‑examination but nothing favourable to the defence came out from his statement. The complainant P.W.5 has narrated the whole prosecution story from beginning to end. He deposed that he in the company of other P.Ws. alongwith Shamir Khan alias Shama, deceased, went to Chak No. 719/G.:B. to see his ailing brother Riaz. The witness deposed that the appellant Falak Sher was armed with Toki P.8 and Sheri, appellant was armed with a Sota P.9. The witness further stated that Falak Sher opened the aggression on the deceased by giving him Toki blows on his head as well as on his leg, which attack wis followed by the other accused. This version of the complainant P.W.5 has been wholly supported by Muhammad Ashraf P.W.6 and Waryam P.W.7. There are absolutely no material contradictions whatsoever in the statements of the eye‑witnesses. Their oral statements coupled with the recoveries of weapons of offence and the blood‑stained earth persuade us to believe that the occurrence had taken place in the manner as disclosed by the prosecution. The recovery of the weapons of offence has been fully established by Nazar Hussain P.W.1 and Shakir Khan P.W.4 Blood‑stained earth which was taken into possession vide memo. Exh.P.C. was found stained with human blood. This shows beyond any doubt that the occurrence in hand had taken place quite near the house of the appellants in which the appellants cause injuries to the deceased and on the receipt of which injuries he died at the spot. Medical evidence is also wholly in line with the evidence of the eye witnesses. After scrutinizing the prosecution evidence in depth, we have come to the conclusion that the prosecution has succeeded in bringing home guilt to the appellants beyond reasonable doubt. The contention of the learned counsel that the prosecution evidence is interested and partial and as such the same should be disbelieved has no force and we are not prepared to agree with the contention of the learned counsel. The presence of Bukhtawar P.W.5, Muhammad Ashraf P.W.6 and Waryam P.W.7 at the spot is established from the facts and circumstances of the instant case. The defence has failed to create any doubt whatsoever in the story of the prosecution. The fact that the eye‑witnesses are related to each other cannot make their evidence doubtful. They had seen the occurrence and there is no reason whatsoever to disbelieve them. In our considered view, they are the truthful witnesses. The learned counsel lastly argued that Shamir Khan alias Shama, deceased, who was acquitted from a murder case a few months ago, passed through the house of the appellants in a boastful manner and provided provocation to the appellants to open an attack upon him. By implication, it can be concluded that the learned counsel has in so many words admitted the occurrence and participation of the appellants in the commission of the crime and he clearly pleaded for the lesser penalty to the appellants.

11. After considering the pros and cons of the prosecution case as well as the defence plea, we hold the view that the appellants were rightly convicted and sentenced by the learned trial Court. The appellant, Falak Sher acted in a cruel manner by using his weapon of offence Toki. He gave Toki blows on the hands of the deceased and when the deceased fell down he gave successive blows on the leg of the deceased which blows caused multiple injuries on his person. Similarly, Sheri, appellant, caused Sota blows on the person of the deceased. The weapons of offence used by the appellants, as stated earlier, were recovered from their possession at their pointing out and the said weapons were found to be stained with human blood.

12. The upshot of the above discussion is that there is no force in the appeal filed by the appellants against the judgment, dated 14‑4‑1984. However, this is in the evidence that the deceased Shamir Khan alias Shama, passed on his bicycle right in front of the Ahata of the appellants and this fact must have given enough provocation to them that their enemy was going away in front of their residential area and he should be done to death. Keeping in view the background of enmity between the parties, we think, this may be a mitigating circumstance and we, therefore, while maintaining the conviction of Falak Sher, appellant, convert his sentence from death to life imprisonment. His death sentence is, therefore, not confirmed. So far as the appeal of Sheri, appellant is concerned, the same is dismissed being devoid of any force. We do not find any force in the criminal revision filed by Bukhtawar complainant for the enhancement of the sentence and accordingly the same is dismissed in limine. The result is that the appeal is partly accepted. The appellant Sheri is on bail. His bail stands cancelled. He shall be taken into custody to serve his remaining sentence. S.G.D./F‑30/L Order accordingly.