1976 P Cr (PLP)

JAVID IQBAL, J.‑Abdur Rehman son of Niaz Muhammad, aged 55 years, and his two sons, namely. Qasim aged 16 years and Gulzar aged 18 years, have been convicted under section 302/34, P. P. C. for the murder of Khushi Muhammad, real brother of Abdur Rehman appellant and vide judgment dated the 21st of June, 1973, of the, Sessions Judge, Multan, they were sentenced as follows :

Abdur Rehman appellant was sentenced to death and the other two were sentenced to transportation for life. All the three were also sentenced to Rs. 1,000 fine each or in default to undergo further rigorous imprisonment for three months each. If the fine was realized it was to be paid to the heirs of the deceased. They were also convicted under section 324/34, P. P. C. for causing simple injuries to Malik Muhammad (P. W.8), the other real brother of Abdur Rehman appellant and were sentenced to one month R. I each. The sentences were ordered to run concurrently. Their separate jail appeals as well as reference for the confirmation of death sentence awarded to Abdur Rehman appellant are being taken up and disposed of together by this judgment.

2. The occurrence took place at 6‑30 pm. on the 29th of April, 1971, at Chah Dayawala Dakhli Chowki Mustl Khan, at a distance of 9 miles from Police Station Keror Pacca, District Multan. F. I. R. (Eah. P. A). was lodged by Mehrban Khan (P. W. 7), first cousin of the deceased and Abdur Rehman appellant at 12-45 a.m. on the same night at Police Station Keror Pacca, and it was recorded by Muhammad Shafi A. S. I. (P. W. 11).

3. The motive for crime as set up by the prosecution is that Niaz Muhammad father of Abdur Rehman appellant who owned about 54 acres of land and is still alive gave about 10 acres of land to Abdur Rehman appellant for cultivation whereas he retained the rest of his land for himself alongwith his other three sons, namely, Khushi Muhammad deceased, Malik Muhammad (P. W. 8) and Abdul Aziz, real brothers of Abdur Rehman appellant. It is stated that Abdur Rehman appellant had a grievance that he had not been properly treated and preference was given to the other brothers as compared to him. He suspected that the said division had been made by his father under the influence of Khushi Muhammad deceased.

4. The prosecution has produced three eye‑witnesses of the occurrence, namely. Mehrban Khan (P. W. 7), first cousin of the deceased and Abdur Rehman appellant, Malik Muhammad (P. W. 8), real brother of Abdur Rehman appellant and the deceased who was also injured in the course of the same incident and Maqbool (P. W. 9), first cousin of Abdur Rehman appellant and the deceased. Abdul Sattar was cited as an eye‑witness in the F. I. R. but was given up as unnecessary.

5. Two of the appellants, namely, Abdur Rehman and Qasim are stated to have remained at the place of occurrence after it had taken place alongwith their weapons of offence and were arrested on the spot by Muhammad Shafi A. S. I. (P. W. 11) at 3‑30 a.m. on the same night when the police had arrived there. The third appellant Gulzar managed to escape and was subsequently arrested on the 6th of May, 1971, by Muhammad Yousaf H. C. (P. W. 10). Blood‑stained hatchet P. 9, stated to have been used by Abdur Rehman appellant was produced on the spot by Maqbool P. W., who had snatched the same from him and it was taken into possession vide memo. Exh. P. B. dated the 30th, of April, 1971. The attesting witnesses are Maqbool (P. W. 91, Abdul Sattar (not produced) and Muhammad Shafi A. S. I. (P. W. 11). Blood‑stained hatchet P. 10, stated to have been used by Qasim appellant was also produced by Maqbool P. W. after having snatched from him and it was taken into possession vide memo. Exh. P. C, dated the 30th of April, 1971. The attesting witnesses are the same. Blood‑stained chaddar P. I was got removed from the person of Abdur Rehman appellant and taken into possession vide memo. Exh. P. E., dated the 30th of April, 1971. The attesting witnesses are the same. Blood‑stained sota P. 2 was recovered from Gulzar appellant and taken into possession vide memo. Exh. P. F., dated the 6th of May. 1971. The attesting witnesses are Malik Muhammad (P. W. 8), Maqbool (P. W. 9) and Muhammad Yousaf H. C. (P. W. 10). In the opinion of the Serologist scrapings and cloth cuttings from the aforementioned articles were found to be stained with human blood. (His two reports are at Exhs. P. R. and P. S.).

6. Dr. Altaf Hussain Gardezi (P. W. 1) conducted post‑mortem examination of the dead body of the deceased at 8‑00 a.m. on the 1st of may, 1971, and found on his person the following injuries : (I) incised wound on the neck extending to the right side, (2) seven incised wounds on the top of head close to each other, (3) right finger was cut, (4) incised wound on the back of left hand, (5) teeth‑bite marks on the right cheek, (6) bone of left middle finger was fractured, (7) contusion with swelling on the top of right shoulder; and (8) abrasion on the front of right elbow. In his opinion death had resulted due to shock and haemorrhage caused by injury No. (t). This injury was sufficient to cause death In the ordinary course of nature. Injuries Nos. (1) to (3) were caused by sharp‑edged weapon and the rest with blunt weapon. Dr. Sabir Ali (P. W. 2) medically examined at 3‑00 p.m. on the 30th of April, 1971, Malik Muhammad (P. W. 8) and found on his person one incised wound on the front of right leg and a scratch on the front of left leg. Both these injuries were declared simple. The first injury was caused by sharp‑edged weapon whereas the second injury was caused by a blunt weapon.

7. The appellants in their statements before the trial Court denied having participated in the occurrence. Qasim appellant stated that he had been falsely implicated. He disowned hatchet P.

10. Gulzar appellant also stated that he had been falsely implicated in this case raise the plea of alibi but could not establish it. Abdur Rehman appellant disowned hatchet P. 9 as well as chaddar P.

1. His version of the occurrence was as follows :‑‑‑ "Khushi Muhammad and Malik Muhammad fought with each other in which Khushi Muhammad received fatal injury and Malik Muhammad was injured by Khushi Muhammad. The hatchets P. 9 and P. 10 belong to Khushi Muhammad and Malik Muhammad. After our arrest, Abdul Aziz and Malik Muhammad took possession of the land given to me and also the whole of the remaining land of my father and got fictitious mutation sanctioned in their favour. My father filed a civil suit challenging the mutation. Abdul Aziz and Malik Muhammad deprived me and heirs of Khushi Muhammad i.e. his widow and two sons from that land. Maqbul P. W. got the story concocted and entangled me in his case as I had injured his father and he was inimical towards him. Similarly Mehrban was also inimical towards me." He appeared before us and presented an application to be read as part of his grounds of appeal. In this application he has adopted the position that in fact his step‑brothers had killed his real brother, namely, the deceased. There is of course no evidence to that effect on the record.

8. In the F. I. R. the occurrence is reported to have taken place in the following manners Mehrban Khan P. W. was present near the mosque of the village when he noticed that Abdur Rehman appellant and his sons Qasim and Gulzar appellants were fighting with the deceased. Mehrban Khan P. W. rushed to the scene of crime and saw that Abdur Rehman appellant and Qasim appellant were armed with hatchets whereas Gulzar appellant was armed with a laths and all the three of them were giving a beating to the deceased. In the meantime Malik Muhammad P. W. also arrived there. Within their sight the deceased fell down on the ground as Abdur Rehman appellant had given him hatchet blows on the neck and Qasim appellant had given him successive hatchet blows on the bead as well as Gulzar appellant had caused injuries to him with his lathi. Mehrban Khan and Malik Muhammad P. Ws. pleaded the appellants to spare the deceased but they were all in a very agitated state and were declaring openly that they would finish the deceased and would teach him a lesson for retaining and enjoying more land. In the meantime. Maqbool P. W. as well as Abdul Sattar (given up) also reached there and witnessed the occurrence. Malik Muhammad P. W. advanced forward in order to rescue the deceased but Abdur Rehman appellant gave him a hatchet blow on the right leg. The deceased received injuries at the hands of the three appellants in the presence of the P. GIs. and tic died on the spot. Thereafter two of the appellants, namely, Abdur Rehman and Qasim were apprehended on the spot by tire P.Ws, alongwith their weapons of offence. However, Gulzar appellant managed to escape along with his lathi. Leaving the dead body as well as the two appellants under the care of the village chowkidar and lambardar Mehrban Khan P. W. went to lodge the F. I. R.

9. We have heard learned counsel for both the sides and have care fully perused the record. This is a case in which Abdur kehman appellant along with his two sons, namely, Qasim and Gulzar appellants had attacked his brother, the deceased, and killed him. The eye‑witnesses in this cast are real brothers of Abdur Rehman appellant or his first cousins. The case of the prosecution is based on the ocular testimony which is corroborated by the recoveries of weapons of offence from the three appellants and is supported by the reports of the Serologist as well as the medical evidence. It has been argued before us that the motive in this case may not be as important as it has been made out, because as one of the four brothers Abdur Rehman appellant could have more or less received the same amount of land as other brothers. According to learned counsel therefore the receiving of less land for cultivation may not have been the motive for the commission of crime. In our considered opinion, the motive is not of much significance in the present case where it is evident from the record that the appellant alongwith his two sons had attacked his brother, the deceased, while the occurrence eras witnessed by his other brothers and first cousins. We are, therefore, of the view that the prosecution has succeeded in establishing its case against the three appellants and their conviction under sections 302/34 and 324/344, P. P. C. therefore, was quite proper and well reserved. However, their remains the question of sentence particularly in the case of Abdur Rehman appellant. We note that according to the F. I. R. Mehrban Khan P. W. was the first person who was attracted to the scene of crime on having noticed that Abdur Rehman appellant and his two sons were fighting with the deceased. In other words, it could not be clearly stated as to what was the immediate cause of occurrence which led to such a fight between a brother on one side and a brother on the other side alongwith his two sons. Since the immediate cause of occurrence or that what transpired immediately before the occurrence is shrouded in mystery, we are not inclined to confirm death sentence awarded to Abdur Rehman appellant in this case as in our opinion the awarding of lesser penalty to him would be sufficient to meet the ends of justice in the circumstances. The result is that the death sentence awarded to Abdur Rehman appellant is altered to imprisonment for life. The conviction, and sentences of Qasim and Gulzar appellants as well as other convictions and sentences of Abdul Rehman appellant are maintained and their appeals are dismissed. With the above modification of the sentence awarded Abdur Richman appellant his appeal is also dismissed.

10. The death sentence awarded to Abdur Rehman appellant is not confirmed. Order accordingly.