1968 P Cr (PLP)

M. JAMIL ASGHAR, J.‑Ahmad, Hayat, Muhammad Ali, sons of Shera, Muhammad Ali son of Mughli, their friend, and Ghulam son of Wali Muhammad, their first cousin, were convicted under section 302/ 149, P. P. C. and each of them, was sentenced to death for the murder of Rehman deceased by the learned Sessions Judge, Gujranwala. They were also convicted under section 148, P. P. C. and sentenced to three years' rigorous imprisonment each. They were further convicted under section 323/149, P. P. C. and sentenced to one year's rigorous imprisonment each for causing simple hurt to Ahman (P. W. 8) and Dosa (not examined). The sentences awarded to them under section 148 and 323/149, P. P. C. were ordered to them concurrently and were to take effect if the death sentences awarded to them were not confirmed by this Court. The appellants, against their convictions and sentences, have preferred this appeal. The learned Sessions Judge has made a reference under section 374, Cr. P. C. for the confirmation of death sentences. Since the appeal and the reference arise out of the same judgment they will be disposed of together by this order.

2. All the appellants are residents of village Dubbar, Police Station Surheke, District Gujranwala, and so was the deceased. Four years prior to the occurrence, under consideration Mst. Jannate (P. W. 6), daughter of Rehman deceased, was married to one Ghulam Muhammad, another brother of Ahmad, Hayat and Muhammad sons of Shera, appellants. She stayed with her husband for some months after the marriage, during which period not only her husband but also her father‑in‑law Shera and her husband's brothers Ahmad, Hayat and Muhammad Ali used to give her beating. About 8 months prior to the occurrence, they again gave her beating and turned her out of the house. She then started residing with her father, Rehman deceased. One day prior to the occurrence Ahmad appellant, her husband Ghulam Muhammad and her father‑in‑law Shera came to the house of the deceased and asked him to allow Mst. Jannate P. W. to go back to the house of her husband. The deceased told them that he would only send her back if they came with the members of their beradari, but they refused. After that they left the house of the deceased. The deceased was an employee of Muhammad Sharif (P. W. 7), resident of the same village. On the day of occurrence, i.e., 18th of December 1964, at about digarwela Muhammad Sharif P. W. left his haveli in order to go to his house. The deceased had also left his haveli at the same time in order to go home and was walking ahead of Muhammad Sharif P. W. When he reached near the shop of one Muhammad Lobar all the five appellants, who had concealed themselves behind a wall, which according to site plan Exh. P. B/I is about 3 1/2 feet high, stood up and launched an attack on the deceased. Muhammad Ali son of Shera appellant was armed with hatchet Exh. P. 5 and the rest had dangs. Muhammad Sharif P. W. raised an alarm, which attracted Ahman (P. W. 8) brother of the deceased and Dosa (not examined), brother of the wife of Ahman P. W., to the spot, whose houses were close by Muhammad Ali son of Shera appellant gave two hatchet blows on the head of the deceased one after the other. After the second blow the hatchet got struck in the head. When Ahman P. W. stepped forward to rescue the deceased, he was given dang blows by Ahmad and Ghulam appellants, while Dosa was given a beating with longs by Hayat, and Muhammad Ali son of Mughli, appellants. The deceased as well as Ahmad P. W. and Dosa fell down after receiving injures. The appellants then left the spot taking their dangs with them. Before leaving the spot, Muhammad Ali son of Shera appellant tried to extract the hatchet from the head of the deceased but was unsuccessful and so he left it there. In the mean while Mst. Jannate (P.W.6), daughter of the deceased, Mst. Fatima, wife of Ahmad P. W. and Mst. Rajan, widow of the deceased, also came there on hearing the alarm, and they saw the appel lants leaving the scene of offence. The deceased died at the spot. Muhammad Sharif P. W. proceeded to Police Station Sukheke, which is at a distance of about two miles from village Dubbar, and lodged first information report Exh. P. A. at Shamwela. The report was recorded by Sub‑Inspector Inayat Hussain (P. W. 11). The Sub‑Inspector thereafter rushed to the scene of offence, reaching there at about 6 p.m. and after preparing injury state ment Exh. P. H. and inquest report Exh. P. G. of the dead body of the deceased, sent it to the mortuary for post‑mortem examination. He also prepared injury statements Exh. P. K. and P. J. of Dosa and Ahmad P. Ws., respectively, and sent them for medical examination. He secured bloodstained earth from the place of occurrence vide memo. Exh. P. C. and made it into a sealed parcel. On the 19th of December 1964, Foot Constable Badar Din (P. W. 3) brought the clothes of the deceased and hatchet Exh. P. 5, which had been extracted from the head of the deceased by the doctor and the same were taken into possession by the Sub‑Inspector vide memo. Exh. P. D. The hatchet as well as the earth, according to the report of the Serologist were found to have been stained with human blood. On the 20th of December 1964, the Sub‑Inspector arrested the appellants. Since Hayat and Muhammad Ali son of Shera had injuries .on their persons, he prepared their injury statements Exhs. P. L. and P. H. respectively and got them medically examined. These injuries, according to them, were not received at the time of the occurrence. Hayat appellant produced Bang Exh. P. 6 and Muhammad Ali son of Mughli appellant produced dang Exh. P. 7, which the S. I. took into his possession vide memo. Exhs. P. E. and P. F. respectively. These dangs were not stained with blood. Hence these recoveries have no corroborative value, because it cannot be said with judicial certainty that these dangs were used in the commission of the offence.

3. Doctor Shaukat Ali (P. W. I) on the 19th of December 1964, at 11 a.m. performed post‑mortem examination of the dead body of the deceased and found the following injuries :‑ (1) An incised wound, 5 ' x 1' x underling bone cut and the brain matter was coming out of the injury on the left half of the head, about 5 1/2 above the mid point of the left eyebrow the blade of the axe was stuck in the head. (2) An incised, wound 2 x 1/2' x bone deep on the left half of the head middle part. its posterior half about 3/4` in the left of injury No. 1 and the anterior end joined the middle part of injury No. 1. (3) An abrasion 1/2" in diameter on the outer aspect of the left buttock middle part. On dissection it was found that there were two cuts in 'the scalp on the left half corresponding to the injuries. The under surface of the scalp on both sides of injury Nos. 1 and 2 was dark in colour to the extent of about 1'. There was a cut throughout the depth of the bone over the left parietal bone and it was semi lunar in shape and 8" long. The examination of the brain showed that the membranes of brain and brain matter were cut to the depth of 8' under injury No.

1. The blood vessels in the brain matter on the left half of the brain were cut. The stomach contained mudy semi‑solid 6 ounces of food material. In the opinion of the doctor the death of the deceased was due to the injury to the brain as a result of injury No. 1, which was sufficient in the ordinary course of nature to cause death. On the 21st of December 1964, at 9 a.m. the doctor examined Muhammad Ali appellant son of Shera and found a scratch 3/4 X 1/4", on the left side of dorsum of left foot near the ankle joint. He also complained of pain in the right wrist joint. The injury was simple and had been caused by a blunt weapon. On the same day at 10 a.m. the doctor examined Hayat appellant and found the following injuries on his person: (1) A plainful swelling 1" x 1/2' on the dorsum of left thumb near the root. (2) A scratch, 1/4" x 1/8", on the back of the middle phalanx of the middle finger of the left hand. (3) A scratch, 1' x 1/4', on the back of right wrist. All the injuries were simple and had been caused by a blunt weapon.

4. Doctor Abdus Sattar Bhutta on the 18th of December 1964, at 8‑46 p.m. examined Ahmad P. W. and found the following injuries on his person: ‑ ‑ (1) A contused wound, 3' x 1/4', scalp deep on the left parietal region antero‑posteriorly. It was bleeding. (2) A contused wound, 1 " x 1/3', skin deep on the left zygoma. It was bleeding. (3) A swelling, 1' x 1', on the occipital left side. (4) A bruise, 3' x 1', on the front of right thigh in a transverse place. (5) Complained of pain in the left forearm. Injury No. 1 was kept under observation and the rest were simple. All the injuries were caused by a blunt weapon. His medico‑legal report is Exh. P. O. On the same day the doctor also examined Dosa, and found the following injuries on his person: ‑ (1) A contused wound, 2' x ', skin deep on the back of right parietal region. (2) A contused wound, " x , pulp deep on the front of left index finger. (3) An abrasion, 1' x 1', and swelling of left upper arm in the middle and outer side of forearm upper side. (4) A bruise, 1' x 1/2', above the right eye. All the injuries were simple and had been caused by a blunt weapon. His medico‑legal report is Exh. P. Q. Since the doctor had left for Saudi Arabia, he could not be examined and the above‑mentioned medico‑legal reports were proved by Abdur Rauf Dispenser before the Committing Magistrate, as he was conversant with his handwriting and signatures. In the Sessions Court the Dispenser also could not be examined because he too had left for Saudi Arabia. His statement made before the Committing Magistrate was transferred to the Sessions file under section 33 of the Evidence Act.

5. The appellants denied their guilt and declined to produce any defence. Hayat appellant explained the injuries on his person by stating that he had been hit by the horn of a bullock and Muhammad Ali son of Shera appellant explained his injuries by stating that he had been hit by a wooden killa.

6. The prosecution case against the appellants rests entirely on the testimony of Mst. Jannate (P. W. 6), Muhammad Sharif (P. W. 7) and Ahman (P. W. 8). Dosa, who had received injuries, Mst. Fatima and Mst. Rajan, have not been examined. With the exception of Muhammad Sharif P. W. the other two eye witnesses are closely related to the deceased. Muhammad Sharif P: W., in the first information report, did not mention that Muhammad Ali son of Shera appellant had also given a second blow on the head of the deceased. There he had only mentioned one blow. He also did not mention before the police that his alarm had attracted Mst. Jannate P. W. to the spot. Before the C. M. he also did not mention that Ahmad and Ghulam appellants had inflicted injuries to Ahman P. W. and Muhammad Ali son of Mughli and Hayat appellants had inflicted injuries to Dosa. At the trial he stated that his haveli lies to the South of the house of the deceased. That haveli, however, has not been shown in the site plan, but the house of the deceased is shown towards East. The house of Muhammad Sharif P. W. is also shown towards North, while the place of occurrence is shown towards West. According to the evidence, he and the deceased after leaving the haveli were proceeding towards their respective houses, when the occurrence took place. From the site plan we find that the deceased in order to go to his own house could not have gone by the route, where the occurrence took place. Even Muhammad Sharif P. W. in order to go to his own house ordinarily would not have adopted that route, which is much longer. Taking this fact into consideration as well as the material discrepancies in his statement, as already pointed out above, we feel that his presence at the spot, when the occurrence took place, is rather doubtful. Further the site plan shows that the house of the deceased from where Mst. Jannate P. W. is alleged to have come to the scene of offence is quite far away and, therefore, in our opinion, she could not have reached the spot when the appellants were still present there. In view of the above her presence has also become doubtful.

7. Now we are left with the testimony of Ahman P. W. Since his house is close' to the place of occurrence, as is shown in the site plan and that he had injuries on his person, his presence at the spot when the occurrence took place, cannot be doubted. It is no doubt true that he is the brother of the deceased, but this fact alone cannot make us doubt his testimony, especially when there is nothing on the record to show that he had any previous enmity with the appellants in order to falsely implicate them. In case Shihab Din v. The State (P L D 1964 S C 177) it was observed:‑ "It has been observed by this Court in a number of cases that the mere fact of relationship does not necessarily render a witness's account of the occurrence subject to doubt. Provided his presence is proved beyond doubt (as here by the presence of injuries on the bodies of Khamisa and Allah Ditta) and the number of persons accused is not out of proportion to the nature of their enterprise and the results they produced (which factors are also satisfactorily established in this case) such witnesses are entitled to be believed, as against a mere plea of false implication on the part of the accused persons." The injuries found on the person of Ahman P. W. are not out of proportion to the number of persons, who attacked him. In view of the above, the mere fact that he is a relation of the deceased, will not make us doubt his veracity. The learned counsel for the appellants, however, contended that even if he was present at the spot, no reliance should be placed on his testimony, because he had mentioned the presence of Muhammad Sharif and Mst. Jannate P. Ws. at the spot, who were not there at all. This contention has no force because the mere fact that he has not told the truth in this respect, will not make us ignore the rest of his statement. 1n case Emperor v. Muzaffar Hussain (A I R 1944 Lah. 97) it was observed:‑ "If a witness is not found to have told the truth in one or two particulars, the whole of his statement cannot be ignored. The Court must sift the evidence, accept what it finds to be true and reject the rest. It has to separate the grain from the chaff, In doing so it is justified in looking upon a witness with suspicion, if he is not found to be true in some material respect. But this does not justify it to throw away the whole of the statement although it is natural that it must examine the rest with greater care." The learned counsel for the appellants also contended that the occurrence did not take place at digarwela as alleged by Ahman P. W. because the doctor, who performed the puss‑mortem examination of the dead body of the deceased, had found six ounces of semi‑solid food in his stomach. According to the learned counsel digarwela is not the normal time for people living in villages to take food. We, however, did not find any force in this contention because during winter season a villager takes his mid‑day meal at about 2 p.m. or so and, therefore, the presence of semi‑solid food in the stomach is not inconsistent with the prosecution version.

8. In the result we are satisfied that the prosecution has successfully brought home the guilt to the appellants, Since Muhammad Ali son of Shera appellant alone was responsible for causing the death of the deceased, we feel that only he and not others deserve maximum sentence as provided by law. We, accord ingly, uphold the convictions of all the appellants under section 302/ 149, P. P. C. and reduce the sentence of Ahmad, Hayat, Muhammad Ali son of Mughli and Ghulam appellants, to transportation for life each. The death sentence awarded to them are accordingly, not confirmed, but the death sentence of Muhammad Ali son of Shera is, however, confirmed. The convictions and sentences of all the appellants under sections 148 and 323/149, P. P. C. are also upheld. All the sentences of Hayat, Ahmad, Muhammad All son of Mughli and Ghulam appellants will run concurrently. The appeal is accepted to the above extent only. Appeal partly accepted.