1998 P Cr (PLP)

MANSOOR ALAMGIR QAZI, J.

Naseer Ahmad alias Nasra aged 35 years, Sarfraz alias Sharfa aged 28 years and Muhammad Ali alias Muhammad aged 60 years, all real brothers were arraigned for trial in the Court of Hafiz Khalil Ahmad, Additional Sessions Judge. Sheikhupura. They were vide judgment dated 20-5-1991 found guilty under section 302/34, P.P.C. and sentenced to death on 2 counts for the murders of Mahmood aged 40 years and Muhammad Ishaq aged 28 years, both real brothers. All the accused were fined Rs.20,000 each and in default of payment to undergo R.I. for one year on two counts each. They were also ordered to pay compensation of Rs.20,000 each to the legal heirs of Mahmood and Muhammad Ishaq deceased and in default of payment of compensation all of them to undergo further R.I. for 6 months each on two counts.

2. Feeling aggrieved the appellants have preferred the Criminal Appeal No.558 of 1991 challenging their conviction and sentences while the State has preferred Murder Reference No.375 of 1992 for the confirmation of the death sentences awarded to the appellants.

3. The present occurrence took place on 20-11-1987 at about noon time in tile arcs of Mauza Malka Haji at a distance of 2-1/2 kills from the Police Station, Syedwala and was reported by Abbas (P.W.1) brother of the deceased vide statement Exh.P.A. which was recorded by Nazir Ahmad, S.-I./S-.H.O. Police Station, Syedwala at Pull Rajbah Syedwala, Jaranwala Road at 2-00 p.m. on 20-I 1-1987 and formal F.I.R. (Exh.P.A./t was recorded at the police station at 2-j0 p.m. by Hasan Ali Moharrir (P.W.4).

4. The motive for the present occurrence, as stated in Exh.P.A. is that about 5 years back the complainant party had given four acres of land to the accused on lease, while one acre was sold in their favour. The sale-deed was registered but no mutation was sanctioned. The complainant party had again taken over the possession of this property about six months back and Nasra and others had filed a civil suit at Nankana Sahib. That was decided in their favour. Nasra and others had instituted an appeal in the Court of District and Sessions Judge and that appeal was still pending.

5. The brief facts of the case, as stated by Abbas (P.W.I) are that Haveli of' the complainant and the deceased was at a distance of 4/5 squares from the village for gathering the cattle. On the day of incident he alongwith his two brothers Muhammad Ishaq and Mahmood, were present in their Haveli and Mahmood was cutting fodder nearby. The complainant was present with his cattle when at about 12 noon Naseer Ahmad alias Nasra, armed with a gun, Muhannnad Ali armed with a hatchet while Sarfraz alias Sharfa armed with a hatchet appeared there. Muhammad Ali raised a Lalkara that they had come to teach a lesson to Mahmood and Ishaque for taking over the possession of the land. Mahmood deceased stood up whereupon Naseer alias Nasra fired at him which hit him on his abdomen and he fell down. He repeated the fire, which hit the deceased Mahmood on his right buttock. Sharfa then inflicted a hatchet blow on the person of Mahmood deceased. Mahmood died at the spot. The three accused then ran towards their Haveli. Muhammad Ishaque apprehending danger to his life concealed himself' in the sugarcane field of Taja son of Ghulam Abbas also reached there. Nasra stood up on the eastern corner of the field with his gun, while Muhammad Ali and Sharfa, accused entered the sugarcane crop to search out Ishaque. Muhammad Ishque then ran towards eastern side to save his life when Nasra accused fired at him. Muhammad Ali accused then inflictco hatchet blows on his person. Muhammad Isnaque died at the spot. The accused went towards the village. The incident was also witnessed by Sanatta (P. W.7) and Muhammad (P.W,6).

6. The Investigating Officer (P.W.12) after recording the F.I,R,. arrived at the spot and he prepared injury statement of Malitnood deceased (Exh.P.S.) and inquest report (Exh.P.T.) and injury statement in respect of dead body of Muhammad Isltaue (Exh.P.Q.) and inquest report (Exh.P.R.) and despatched the dead bodies for post-mortem examination. In the course of inspection of tile spot he collected blood-stained earth from the place of the murder of Mahmood deceased. It was made into a sealed parcel which was taken into possession vide recovery memo. (Exh.P.H.). Similarly he secured blood-stained earth from the place of murder of Muhammad Ishque deceased, made it into a sealed parcel and took into possession vide recovery memo. (Exh.P.J.). One crime-empty of .12 bore was taken into possession from the place of murder of Mahmood deceased. It was made into a scaled parcel and taken into possession vide recovery memo. (Exh.P.L.). He secured 3 crime-empties of .12 bore from the place of murder of Muhammad Ishaque deceased. They were made into a sealed parcel and taken into possession vide recovery memo. (Exh.P.M.). Fodder, Chaddar (Exh.P.10) and sickle (Exh.P.ll) were taken into possession from the place where Mahmood deceased was cutting fodder. They were secured vide memo. (EXh.P.K.).. All these memos. are attested by Muhaintnad P.W.61. Sanatta (P.W.7) and Nazeer Ahmad the invcst;,L),ating officer (P.W.12).

7. All the accused were arrested, on 2-12-2987. On 9-12-198" Naseer Ahmad alias Nasra act:used while m police custody led to his house and from a cot on which beddings wcre lying he got recovered one .12 bore gun (Exh.P.;)) and its licence (Exh.P.7). It was made into a sealed parcel and taken inter possession vide memo. (Exh.P E.1. On the same day Muhammac. Ali alias Muhammad accused while in police custody led to,his house and from inside the room from a cot on which clothes were lying he got recovered blood-stained I-atchet (Exh.P.8). It was taken into possession vide memo. (Exh.P.F.). Sarfraz accused also on the same day while in police custody led the police to his house and from underneath a Jisti Patti he got recovered a blood-stained hatchet which was made, into a sealed parcel and taken into possession vide memo. (Exh.P.G.).All these memos. were attested by Muhammad- Abbas (P.W.5), Nazir Ahmad the Investigating Officer (P.W.12) and Asghar Ali (given up). Two sealed parcels containing the blood-stained hatchets recovered from the accused were sent to the office 61' the Chemical Examiner who vide report Exh.P.X. opined that they were stained with blood and were sent to the Serologist whq vide report Exh.P.AA. opined that both the hatchets were stained with human blood. The blood-stained earth was sent to the Chemical Examiner who vide report Exh.P.V. and P.W. opined that they were found to be stained with blood. Reports of the Serologist Exh.P.Y. and Exh.P.Z. show that the earth was stained with blood. The crime-empties and the gun recovered from Naseer Ahmad alias Nasra appellant were separately sent to the Forensic Science Laboratory on 25-11-1987 and 21-12-1987 respectively and vide report Exh.P.BB all the four crime-empties (Exh.P.12 and Exh.P.13/1-3 were found wedded with gun Exh.P.6.

8. After completion of the investigation the accused were challenged and sent up for trial.

9. The accused were charged and prosecution produced 12 witnesses to prove the charge, and thus, believing the prosecution evidence the accused were found guilty and convicted as above. (10) Dr. Saif-ur-Rehtnan, Medical Officer, Tehsil Headquarters Hospital Nankana Sahib, District Sheikhupura (P.W.9) stated that on 2l-I 1-1987 at I I-15 he conducted autopsy on the dead body of Mahmood deceased and found the following injuries on his person:-- (I)??????? A lacerated wound in an area of 10 c.m. x 8 c.m. on right side of abdomen just below and lateral side of umblicus. (2)??????? Five lacerated wounds on the right side of lower back and buttock. (3)??????? An incised wound 1.5 c.m. x 1.5 c.m. with tail about 6 c.m. In his opinion death had occurred due to shock and haemorrhage as a result of injuries Nos. l and 3 which were found sufficient to cause death in the ordinary course of nature. Injuries Nos. l and 2 were caused by fire-arm while, injury No.3 was due to sharp-edged? weapon. All the injuries were ante-mortem. The time between injuries and death was about half an hour while between death and post-mortem was 24 hours. On the same day at 12-30 noon he conducted autopsy on the dead body of Muhammad Ishaq and found the following injuries on his person: (1)??????? An incised wound 10 c.m. x 1 c.m. bone cut on the left side of head behind left ear. (2)??????? An incised wound 10 c.m. x 1 c.m. x bone deep on right side of the head. (3)??????? A lacerated wound with small multiple wounds on and behind right ear. (4)??????? A lacerated wound on the lateral side of right arm 3 c.m. x 3 cm. (5)??????? A lacerated wound 6 c.m. x 4 c.m. in the front of right arm. (6)??????? A lacerated wound 20 c.m. x 15 on the right elbow involving arm and ?? forearm with fracture of humorous, redious and ulna. (7)??????? A lacerated wound on the left arm on lateral side. (A post-mortem cut was made). (8)??????? An incised wound on the back of left hand 10 c.m. with bone cut (Fourth metacarpals Nos.2, 3, 4 and 5). (9)??????? Thirteen lacerated wounds I c.m. x '/z c.m. on the back on right side (Three post-mortem cuts were made on the back). (10)????? An incised wound on the right shoulder. (11) ???? A lacerated wound 2 c.m. x 1.5 c.m. on the epigastrium, with blackening of the edges of wound. (12)????? A lacerated wound 5 c.m. x 4 c.m, over left hypogasfrium. In his opinion death was due to shock and haemorrhage as a result of injuries Nos. 11 and 12 which were sufficient to cause death in the ordinary course of nature. Injuries Nos. l, 2, 8 and 10 were caused by sharp-edged weapon while injuries Nos.3, 4, 5, 6, 7, 9, 11 and 12 were caused by fire-arm. All the injuries were ante-mortem. The time between the injuries and death was 1/2 hour while that between death and post-mortem 26 hours. He has further stated that injuries Nos. l to 8 and IO were collectively sufficient to cause death while injuries' Nos. 11 and 12 were individually sufficient to cause the death in the ordinary course of nature.

11. The accused were examined under section 342, Cr.P.C. and they denied the prosecution case and pleaded that they have been falsely involved on account of enmity. Naseer Ahmad alias Nagra accused opted to produce defence while Sarfraz and Muhammad Ali did not. None of them, appeared as required under section 340(2), Cr.P.C. to disprove the allegations levelled against them on oath. Tahir Jameel a Petition-Writer of the District Courts was examined as D.W.I and copies of applications Exhs. D.D. and D.E. were proved and placed on the record.

12. Learned counsel for the appellant has taken us through the evidence recorded in the course of trial and with his assistance the record has been perused and scrutinised. Learned counsel for the State was also heard at length who has supported the judgment and has prayed that the conviction and sentences awarded to the appellants be maintained.

13. Abbas (P.W.I) is the real brother of the deceased and he is the only witness who has stated about the motive in the F.I.R. He was declared hostile at the time of trial as he had not supported the prosecution case. His such behaviour is evident from the documents Exhs. D.D. and D.E. wherein it is recorded that Khan father of the deceased and Abbas complainant (P.W.1) had pardoned the accused. Thus, the motive behind the occurrence does not stand proved. However, the ocular account stands proved from the evidence of Muhammad (P.W.6) and Sanatta (P.W.7). Both these witnesses are brothers of the mother of deceased and are also related to the accused. Their father owns land at Chah Daddiwala which is near the place of the occurrence and' the murder of Mahmood deceased had taken place in the sank held in which they were orating their sheep while the murder of Muhammad Ishaq deceased took place at some distance from this place file accused and the deceased have their Dharis at this Chah. There is nothing on the record to show that these witnesses I had airy enmity or ill-will against the accused. Their evidence coupled with the evidence of recovery and the medical evidence proves the guilt beyond doubt of all the accused. Keeping in view the applications submitted by Abbas (P.W.I), I the complainant and Khan father of the deceased rind also keeping in mind the fact that in the present case the motive has not been proved we are not inclined to confirm the death sentence awarded to the appellants. Hence the Murder Reference No. 375 of 1992 is answered in the negative and holding all the t appellants guilty under section 302/34. P.P.C. they are sentenced to life imprisonment each on two counts, which sentences shall run concurrently and they are also awarded the benefit of section 382-B, Cr.P.C. The sentence of tine and compensation ordered to be paid by each of them on each count by the learned trial Court is maintained. With these observations and modifications the Murder Reference and the appeal are decided accordingly. N.H.Q./N-58/L??????????????????????????????????????????????????????????????????????????????????? Sentence reduced.