1983 P Cr (PLP)

Umar Hayat was also examined by Dr. Shah Nawaz and he found the following injuries on his person :- (1) Contusion l" x 1/8" below the bridge of nose. (2) An incised wound 1" x " x " back lower part of his side chest, about l from the mid line. (3) An abrasion 1" x 3/4" front outer side of his right knee joint. All the injuries were found simple in nature. Injury No. 2 was caused by a sharp weapon while injuries Nos. 1 and 3 were by blunt weapon. Their duration was 12/24 hours. Exh. P. M. is copy of the medico-legal report in respect of Umar Hayat. Dr. Jamil Ahmad (P. W. 11) examined Ghulam Nabi (P. W. 5) and found the following injuries on his person :- (1) Tender swelling 1" x " on the occipital bone on right side. (2) An abrasion 1" x 1/3" on the back of neck. (3) Contusion mark 1" x 1/2" on the left shoulder. Injury. Nos. 1 and 3 were reported to have been caused by blunt weapon and were of duration of 6/12 hours. Exh. P. N. is the medico legal report of Ghulam Nabi. Dr. Jamil Ahmad also examined Muhammad Ikram appellant and found an abrasion x " on the outer side of left eyebrow. The injury, was stated to be simple arid caused by blunt weapon. Its duration was 9 days. Exh. P. O. is a copy of the medico-legal report in respect of Muhammad Ikram. Shah Nawaz appellant too was examined by Dr. Jamil Ahmad, who found the following injuries on his person :- (1) Contusion mark 3/4" x 1/2" on the anterior aspect of left shoulder joint. (2) An abrasion " x " with swelling 3" x 2" on the back of right forearm. Both the injuries were found simple and caused by blunt weapon. Their duration was about 9 days. Exh. P. Q/1 is the medico/legal report" of Shah Nawaz.

8. It was Sultan Ali, Sub-inspector (P. W. 12) who investigated the Case and submitted the challan in the case.

9. While making statement under section 342 of the Code of Criminal Procedure it was denied by Muhammad Ikram that he had cut jokes with village ladies about a week before the occurrence or had any altercation with Umar Hayat (P. W. 5) in that connection. He, however, admitted the incident which had taken place in the village mosque before the actual occurrence. He accepted the responsibility of taking the lives of Muhammad Akram and Muhammad Ahmad deceased. While so doing he gave his own account of what had happened at the mosque and thereafter. His version reads thus On the day of occurrence, ''early in the morning I along with my brother Shah Nawaz accused went to the village mosque to take bath. I bad a knife with me also at that time to cut maswak from a kikar tree before taking the bath. I drew water from the khoi and filled the tank of the bath room but in the meantime Umar Hayat P. W. reached there and insisted to have bath first, I did not allow him to do so and told him to take bath at his turn at which he abused me and gave me fist blows. Myself and Shah Nawaz also gave him fist blows and Umar Hayat went away from there to his house threatening us to be ready to face the consequences. Myself and Shah Nawaz took bath in about 10 minutes time after the said occurrence and proceeded for our house through the street which leads to our house from the northern direction from the said khoi. When we reached near the house of Siddique, Muhammad Ahmad and Akram deceased came down armed with dangs and while challenging us attacked us telling that they would avenge the insult meted out to Umar Hayat by us. Muhammad Ahmad gave a dang blow to Shah Nawaz on his left shoulder whereas Akram gave dang blow on his right forearm and Shah Nawaz fell to the ground. In order to save Shah Nawaz I inflicted injuries with knife. Thereafter, Muhammad Akram tried to give a dang blow on my head which hit my eyebrow and to save myself I caused injuries to Muhammad Akram. Had not I used the knife in the right of self-defence Muhammad Ahmad and Akram deceased would have killed me and my brother Shah Nawaz. None out of the P. Ws. was present at the said place of occurrence nor any one of them sustained any injury there. The injuries on the persons of the P. Ws. are self sustained. Muhammad Amin accused is our only relative who is living with us. Shah Nawaz appellant also subscribed to the version given by Muhammad Ikram appellant. Muhammad Ayub appellant and Muhammad Amin, the acquitted accused, denied the allegations against them and stated that they had beer involved in the case due to enmity with the prosecution witnesses. The recoveries attributed to the appellants were denied by them, No witness was examined in defence.

10. The learned trial Court disbelieved the recoveries and that part of the motive which related to the cutting of jokes by Muhammad Ikram appellant with the village girls. According to the learned Additional Sessions Judge the participation of Muhammad Amin in the occurrence was doubtful and, therefore, he was acquitted. In regard to the appellants it was held by him that the case against them had been proved beyond reasonable doubt and, therefore, they were convicted and sentenced as aforesaid.

11. Before proceeding to determine the precise offences, if any, c9mmitted by the appellants we would like to find out whether all or only some of them had participated in the occurrence resulting in the deaths of Muhammad Akram and Muhammad Ahmad. According to the ocular testimony furnished by Allah Rakha (P. W. 4.), Ghulam Nabi (P. W. 5) and Umar Hayat (P. W. 6) all the three appellants had taken part in the occurrence. It was also opined by Dr. Shah Nawaz (P. W 10) that the injuries suffered by the deceased could not be caused with one weapon. Muhammad Ikram and Shah Nawaz too admitted their participation in the incident at the mosque as well as the actual occurrence in which the deceased were killed and they had received injuries. There is no disagreement on the point that they received injuries during the course of the occurrence. We are, therefore, in no manner of doubt that Muhammad Ikram and Shah Nawaz appellants had participated in the occurrence culminating in the deaths of Muhammad Akram and Muhammad Ahmad.

12. As for Muhammad Ayub appellant, it may be pointed out that in the F. I. R., Exh. P. D, the only role attributed to him in regard to the deceased was that he inflicted a churri blow on the front side of the left thigh of Muhammad Akram deceased. It was also stated in the F. I. R. that Muhammad Ikram appellant had given another churri blow to Muhammad Akram on the back side of his thigh. Thus, according to the F. I. R. two injuries were caused on the thigh of Muhammad Akram. This version is belied by the medical evidence inasmuch as according to his post-mortem examination report, Exh. P. L., and the statement of Dr. Shah Nawaz (P. W. 10). who conducted that examination, Muhammad Akram deceased had only one injury on his thigh. The wound on the front side of his thigh was the wound of entry and wound on the back side of it was the exit wound. It seems that in view of the medical opinion the prosecution thought of revising its story qua the injury suffered by Muhammad Akram on his thigh and decided to ascribe the same to Muhammad Ayub, alone. This is evident from the statements made at the trial, by the maker of the F. I. R, namely, Allah Rakha (P. W. 4), Ghulam Nabi (P.W. 5) and Umar Hayat (P.W. 6). They are all eyewitness es in this case. According to their testimony no injury on the thigh of Muhammad Akram was inflicted by Muhammad Ikram appellant. This position is contrary to the prosecution story, in regard to that injury. as set out in the F. I. R. It is not disputed that Muhammad Ayub appellant was not present when the incident at the mosque had taken place. Unlike Muhammad Ikram and Shah Nawaz appellants, no injury was found on his person. The recoveries, including the recovery of churri Exh. P. 9 at the instance of Muhammad Ayub, were disbelieved by the learned trial Court and no objection in this regard was raised by learned counsel for the State or learned counsel for the complainant. The fateful occurrence had taken place soon after the incident of the mosque inasmuch as accor ding to the prosecution version Umar Hayat was still heading towards his house after his encounter at the mosque when the appellants had made the fatal attack. Muhammad Ikram and Shah Nawaz had, therefore, little time to collect Muhammad Ayub appellant and also persuade him, to join hands with them in taking the lives of two persons. As indicated above, all the three appellants are real brothers and sometimes innocent relatives of the real culprits are also involved in criminal cases to disable their relatives from arranging the defence of such culprits. It, therefore, seems doubtful that Muhammad Ayub had participated in the fatefull operation.

13. What is now to be seen is whether Muhammad Ikram and Shah Nawaz appellants had intentionally caused the death of Muhammad Akram and Muhammad Ahmad. It was deposed by Umar Hayat (P. W. 6) that when the incident at the mosque was over, he left for his house (dera) by one route while the appellants went away by another route and he had not yet reached his house that they came forward to make the fatal attack after arming themselves with churris, Exhs- P. 8 and P. 7. respectively. Thus, according to his testimony, it was a case of premeditated murder. Nothing was said against the eye-witnesses except that they were related to the deceased; but mere relationship is no ground for discarding their testimony. There is nothing serious in their statements to warrant heir rejection. Their testimony is supported by the medical evidence. Muhammad Ikram and Shah Nawaz bad also motive to kill the deceased because shortly before the occurrence they had a scuffle with their (deceased's) elders at the mosque in which abuses and fist blows were exchanged. It is to the statement of Allah Rakha (P. W. 4) that Umar Hayat was giving abuses to Muhammad Ikram and Shah Nawaz as he was returning to his houct from the mosque. The appellants too had said that Umar Hayat had left the mosque in threatening mood. We are, therefore, inclined to accept the prosecution version that Muhammad Ikram and Shah Nawaz appellants had deliberately caused the death of Muhammad Akram and Muhammad Ahmad.

14. As for the plea raised by learned counsel for the appellants that Muhammad Ikram and Shah Nawaz had caused the deaths of Muhammad Akram and Muhammad Ahmad in exercise of their right of self-defence, they did not produce any evidence to substantiate this plea. It was contended by learned counsel for the appellants that the deceased had come out with soras and had actually inflicted injuries on Muhammad Ikram and Shah Nawaz with the sotas. The number and nature of injuries found on the persons of the two appellants, as spelt out in the statement of Dr. Jamil Ahmad (P. W. 11) and the reports Exhs. P. O. and P. Q/1. however, speak otherwise. Muhammad Ikram had just an abrasion " x " on the outer side of left eyebrow and Shah Nawaz had a contusion mark " x " on the anterior aspect of left shoulder joint and an abrasion " x " with swelling 3" x 2" on the back of right forearm. Both the deceased were young men of about 22 years each and if they had actually caused injuries to the appellants with sotas they would not have been like those found on the persons of the appellants.

15. Much stress was laid by learned counsel for the appellants on the statement of Umar Hayat (P. W. 6), under section 161, Cr. P. C., Exh. D. A. to pursuade us to accept the defence version. In that state ment Umat Hayat had said that he and the two deceased had given sota blows to Muhammad Ikram and Shah Nawaz appellants but this part of his statement was not duly proved by the Investigating Officer. In view of 0 the provisions of section 162 of the Code of Criminal Procedure, therefore, his said statement cannot 6e taken into consideration. The explanation of the injuries of the appellants as given by Ghulam Nabi (P, W 5) and Umar Hayat (P. W. 6) was that they were caused by Umar Hayat with a purani (small stick). The sequence in which the statement was made by Umar Hayat shows that he gave blows to the appellants after the deceased P had received fatal injuries. According to Ghulam Nabi they were inflicted by Umar Hayat while intervening in the attack launched by the appellants. To our minds, the explanation furnished by the prosecution for the injuries found on the persons of Muhammad Ikram and Shah Nawaz is more plausible than the one given by the appellants.

16. In view of the nature and dimensions of the injuries suffered by the deceased, we are unable to believe that they were caused by a knife carried by Muhammad Ikram for cutting miswak. It was also extremely difficult, if not impossible, for Muhammad Ikram alone to inflict these) injuries to the deceased, both of whom were yet in their youth, in the presence of three eye-witnesses, who were all related to the deceased. The presence of Ghulam Nabi and Umar Hayat appears to be beyond doubt because they had also received injuries during the occurrence. Their injuries find mention in the statements of Dr. Shah Nawaz (P. W. 10) and Or. Jamil Ahmad (P. W. 11) and the reports Exhs. P. M. and P. N. According to the post-mortem examination reports of the deceased the injuries suffered by them were not caused with one weapon. This mean that more than one weapons were used and, obviously, by more than on persons. We are, therefore, not inclined to accept that it was Muhammad Ikram only who had caused two deaths by means of a knife, which was with him for cutting miswak.

17. It was vehemently argued by learned counsel for the appellants that due to the incident at the mosque the appellants had grudge against Umar Hayat (P. W. 6) and if at all they had to hack any one to death they would have killed Umar Hayat and not his son and nephew who had not done or said any thing to them (appellants). It is in the evidence of Umar Hayat that he is an old and infirm person of 70 years. It is a frequent experience that in our country, especially in the rural areas, when somebody makes up his mind to eliminate any member of his opposite faction he prefers to aim his attack on any important and able-bodied member of that faction instead of directing it against any aged or crippled member thereof so that if at all he has to go to the gallows he spay do so for depriving his adversaries of a valuable life and not for taking the useless life of any spent up person. The attack of the appellants on the young ones of Umar Hayat's family is, therefore, not unusual. It is also not necessary for punishing a person for causing the death of another that he should have a reasonable excuse for putting him to death. The omission of the appellants to mount fatal attack against Umar Hayat is, therefore, of little consequence.

18. In view of the ocular evidence, evidence of motive and the medical evidence produced by the prosecution we are satisfied that Muhammad Ikram and Shah Nawaz appellants had intentionally caused the death of Muhammad Akram and Muhammad Ahmad. The defence version put forth by them is not acceptable. We, therefore, uphold their convictions under section 302 read with section 34 of the Pakistan Penal Code on both counts. We have already found that the participation of Muhammad Ayub appellant in the occurrence is doubtful. We, accord ingly, give him the benefit of doubt and acquit him of the charge under section 302 read with section 34 of the Pakistan Penal Code. He shall be set at liberty forthwith if not required in any case.

19. As for the sentences awarded to Muhammad Ikram and Sham Nawaz appellants we find no mitigating circumstance in their favour. They had taken the lives of two young men in the broad daylight without any provocation from them. They, therefore, deserve the extreme penalty provided by law. The amount of fine imposed on them is also not exces sive. We, therefore, uphold the sentences imposed on. Muhammad Ikram and Shah Nawaz.

20. The result, therefore, is that the appeals of Muhammad Ikram and Shah Nawaz are dismissed but the appeal of Muhammad Ayub is accepted. The death sentences awarded to Muhammad Ikram and Shah Nawaz appellants are confirmed. The reference is disposed of accord ingly. Order accordingly.