MUHAMMAD NAWAZ AND 5 OTHERS Versus THE STATE
AFRASIAB KHAN, J.‑‑ The appellants (1) Muhammad Iqbal (48), (2) Muhammad Nawaz (45), (3) Muhammad Riaz (43), (4) Muhammad Sadiq (50), sons of Pir Bakhsh, (5) Muhammad Arshad (25) and (6) Muhammad Ansar (21), sons of Muhammad Sadiq, were convicted by the learned Additional Sessions Judge, Sargodha, vide his judgment dated 16‑3‑1986 for the murder of Mirza Khan (70) and Ghulam Nabi (45) and for causing injuries to Muhammad Yasin (P.W.7) under section 302/324/148/149, P.P.C. The first three, namely, Muhammad Iqbal, Muhammad Nawaz and Muhammad Riaz were sentenced to death each plus a fine of Rs.5,000 and in default to one year's R.I. on each count under section 302/149, P.P.C. The remaining appellants Muhammad Sadiq, Muhammad Arshad and Muhammad Ansar were sentenced to life imprisonment under section 302/149, P.P.C. plus a fine of Rs.5,000 on each count and in default to undergo further one year's R.I. All the six appellants were sentenced to six months' R.I. each and a fine of Rs.200 each and in default to undergo one month's R.I. under section 324/149, P.P.C for causing injuries to the above referred Mohammad Yasin (P.W.7). All the appellants were also convicted and sentenced under section 148, P.P.C. to one year's R.I. each. Regarding the fine under section 302/149, P.P.C. if recovered, it was directed that half of the same shall be paid to the legal heirs of the two deceased Mirza Khan and Ghulam Nabi in equal shares as compensation under section 544‑A, Cr.P.C. Regarding the fine imposed upon the appellants under section 324/ 149, P . P . C . , if recovered, it was ordered that half of the same shall be paid as compensation to the injured Yasin (P.W.7). The sentences were ordered to run concurrently. All the appellants were provided the benefit of section 382‑B, Cr.P. C. The learned trial Court has made reference under section 374, Cr.P.C. for the confirmation of the sentence of death vide M.R. No.89 of 1986. The appellants have challenged their conviction and sentence through Criminal Appeal No.187 of 1986. Sanaullah complainant has moved Cr.R. No.223 of 1986 for the enhancement of the sentence awarded to Muhammad Sadiq, Muhammad Arshad and Muhammad Ansar appellants to death. We propose to dispose of these three matters together by our single judgment.
2. Briefly stated, the case of the prosecution as narrated by Sanaullah complainant (P.W.8) in his statement (Exh.P.J.) is that on 16‑1‑1985, he, Mirza Khan (deceased), Ghulam Nabi (deceased) both cousins of the complainant, Muhammad Yasin (P.W.7) resident of Chak No.87 Janubi and Muhammad Akram (not produced) boarded a tonga from Kalyar Town for District Courts Sargodha. It was about 12‑45 p.m. When they reached in front of the Government College, the appellants Muhammad Riaz armed with a Khanjar, Muhammad Nawaz, Muhammad Sadiq and Muhammad Iqbal, all armed with knives, Muhammad Ansar armed with a Khanjar and Muhammad Arshad armed with a knife, emerged from a nearby nursery and shouted that they have come and that Muhammad Riaz appellant raised a Lalkara that they will not spare them alive today. Upon this, all the members of the complainant party come down from the tonga. Mirza Khan ran towards the college side, whereas Ghulam Nabi ran towards the nursery side. The appellants Muhammad Riaz, Muhammad Nawaz and Muhammad Sadiq followed Mirza Khan, whereas appellants Muhammad Iqbal, Muhammad Ansar and Muhammad Arshad chased Ghulam Nabi. Appellant Muhammad Riaz gave a Khanjar blow to Mirza Khan which landed on his back and on the receipt of the injury, he fell down on the ground. Another blow with dagger was inflicted by Muhammad Riaz upon him. Thereafter, Muhammad Riaz, Muhammad Nawaz and Muhammad Sadiq appellants gave successive blows to Mirza Khan with their respective weapons. Ghulam Nabi was given a Khanjar blow by Muhammad Ansar appellant which landed on his back. Another blow was repeated by Muhammad Ansar upon him. Thereafter, Muhammad Ansar, Muhammad Iqbal, Arshad, Muhammad Riaz, Muhammad Nawaz and Muhammad Sadiq gave successive blows with their respective weapons to him. Muhammad Yasin P.W. tried to interfere whereupon the appellant Muhammad Nawaz inflicted a knife blow on his shoulder. The witnesses raised an alarm and the appellants ran away towards Kalyar Town. Mirza Khan and Ghulam Nabi succumbed to the injuries at the spot.
3. The motive is that about 11 moths ago one Muhammad Ashraf son of Pir Bakhsh, who was the real brother of the appellants Muhammad Riaz etc., was done to death and in that murder case Mirza Khan deceased etc. alongwith other five persons were challaned and were being tried. Mirza Khan was admitted to bail in the murder case and 19‑1‑1985 was the date of hearing. In order to taken revenge, Muhammad Riaz etc. in execution of their common object, committed the above referred murders.
4. Muhammad Anwar Khan Inspector Police (P.W.10) investigated the case. He recorded the statement (Exh.P.J.) of complainant Sanaullah (P.W. 8). He visited the spot and found Muhammad Yasin (P.W.7) in an injured condition. Injury statement (Exh.P.C.) of Muhammad Yasin P.W. was prepared by him. The said witness was sent for medical examination in the care of F.C. Muhammad Shafi (P.W.2). Injury statement (Exh.P.I.) and inquest report (Exh.P.U.) in respect of Mirza Khan deceased was prepared. Similarly, injury statement (Exh.P.H.) and inquest report (Exh.P.V.) in respect of Ghulam Nabi deceased were prepared and both the dead bodies were sent to the mortuary. Blood‑stained earth was taken into possession vide Memos. Exhs. P.K. and P.L. from the place of occurrence in the presence of Sanaullah (P.W.8) and Parvez Iqbal (not produced). Blood‑stained clothes of Muhammad Yasin (P.W.7) namely, Kurta P.18 and Saluka P.19 were taken into possession vide memo. Exh.P.X. The last worn clothes and shoes of Ghulam Nabi deceased EXhS.P.1 to P.4 and P.5/1‑2 were taken into possession vide memo. EXh.P.A. The last worn clothes and shoes of Mirza Khan deceased P.6 to P.10 and P.11/1‑2 were also taken into possession vide memo. Exh.P.B. Muhammad Sadiq, Muhammad Iqbal, Muhammad Arshad and Muhammad Ansar appellants were arrested by the witnesses on 21‑1‑1985. Muhammad Nawaz and Muhammad Riaz appellants were arrested on 23‑1‑1985 and 26‑1‑1985, respectively. Muhammad Nawaz appellant led to the recovery of blood‑stained knife P.14 from under a date palm tree near the Government College, Sargodha on 25‑1‑1985 which was taken into possession vide memo. Exh.P.M. Muhammad Sadiq appellant on the same day got recovered blood‑stained knife P.15 from a place near the Government College, Sargodha which was taken into possession vide memo. Exh.P.N. Muhammad Iqbal appellant led to the recovery of blood‑stained knife P.16 from grass grown near a mulberry tree near the college which was taken into possession vide memo. Exh.P.O. Muhammad Arshad appellant led to the recovery of blood‑stained knife P.17 from under a cluster of guava trees which was taken into possession vide memo. Exh.P.Q. Muhammad Ansar appellant led to the recovery of dagger P.18 on 25‑1‑1985 which was taken into possession vide memo Exh.P.R. Muhammad Riaz appellant got recovered dagger P.10 which was taken into possession vide memo. Exh.P.S. Site plan Exh.P.T. and Exh.P.T./1 from Muhammad Salim, Draftsman (P.W.9) were got prepared by the witness. All the above referred incriminating articles were sent for examination purposes. The report of the Chemical Examiner (Exh.P.Y.) and that of the Serologist (Exh.P.Z.) were positive.
5. Dr. Safdar Ali (P.W.4) medically examined Muhammad Yasin (P.W.7) on 16‑1‑1985 at 4‑40 p.m. and found the following injury on his person:
(1) An incised wound 6 x 4 c.m. x muscle deep on the back of left shoulder and upper arm. The wound was bleeding profusely.
In cross‑examination the witness stated that possibility of such an injury as on the person of Muhammad Yasin P.W. could not be ruled out of being by a friendly hand but he could not say with certainty.
6. Dr. Muhammad Khalid Qureshi (P.W.5) on 17‑1‑1985 at 10‑00 a.m., conducted the post‑mortem examination on the dead body of Mirza Khan, aged 70 years, and found the following injuries on his person:‑---
(1) Stab wound 1 x 1" deep on right side of noes
(2) Incised wound 5" x 2" in front of neck below the cartilage.
(3) Stab wound 1" x 1/3" x quite deep on midline in front of chest.
(4) Stab wound 1" x 1/3" x quite deep " towards left of injury No.3.
(5) Stab wound 3" x " x quite deep on right renal angle.
In the opinion of the doctor, death occurred due to injuries Nos. 3 and 4 causing haemorrhage and shock. These injuries were sufficient to cause death in the ordinary course of nature. Injury No. 1 was simple, whereas injury No. 2 was found grievous and dangerous to life. Similarly, injury No. 5 was grievous and found dangerous to life. All the injuries were inflicted by a sharp‑edged weapon. Time between injuries and death was immediate and between death and post‑mortem examination it was about 24 hours.
7. On the same day, the dead body of Ghulam Nabi was subject to post‑mortem examination by the same doctor. Following injuries were found on his person:
(1) Incised wound 2" x " into bone deep on right side of forhead.
(2) Incised wound 1 x " into cutting of cartilage on lower part of left ear through and through.
(3) Incised wound 2" x " into quite deep starting below right ear extending to neck.
(4) Incised wound 1" x " x bone deep on right angle of jaw.
(5) Incised wound 8" x " bone deep on lower part of right side of face.
(6) Incised wound 2" x 1" into quite deep on right side of neck.
(7‑A) Incised wound 1 " x " into quite deep 1" from injury No.6.
(7-B)Incised wound " x " into muscle deep below injury No. 7‑A.
(8) Incised wound 7" x 2" into cutting trachea on front half of it, front of neck.
(9) Incised wound 1 " x " into muscle deep on lower part of left side of face.
(10) Incised wound " x into muscle deep on left side of lower jaw.
(11) Incised wound 1 " x " into muscle deep on the back of right hand.
(12) Incised wound 1 " x " on back of left forearm 3" above left wrist joint.
(13) Incised wound 1 " x ", 1 " above injury No. 12.
(14) Incised wound 1 " x " on back of left forearm on upper 1/3".
(15) Incised wound " x " into muscle deep in anteromedial side of left forearm.
(16) Incised wound 1‑3/4" x 1" below outer part of left clavical into quite deep in front of left side of chest.
(17) Incised wound 1 " x 1/3" in front of right side of chest 2" from midline 1‑3/4" below medially from nipple.
(18) Incised wound 2 " x 1" into quite deep, 3/4" below injury No. 17.
(19) Incised wound 2" x 1" into quite deep on midline in epigastrium.
(20) Incised wound 2 " x 1" into intestine protruding out below right costal margin, 1" from midline.
(21) Incised wound 1" x " into depth to be probed on left side of chest on lower part.
In the opinion of the doctor, death occurred due to haemorrhage and shock caused by injuries Nos. 21, 8 and injuries Nos. 3, 16, 17, 18, 19, 20 also contributed to haemorrhage and shock. All the injuries were inflicted by a sharp‑edged weapon and were ante‑mortem. Injury No. 21 was sufficient to cause death individually also in the ordinary course of nature. Injuries Nos.2, 16, 17, 18, 19, 20, 3, 8 and 21 are all grievous. The time between injuries and death was immediate and between death and post‑mortem examination was about 24 hours.
8. The prosecution in order to prove its case has produced as many as ten witnesses including the eye‑witnesses namely, Muhammad Yasin (P.W.7) and Sanaullah (P.W.8). Muhammad Yasin P.W. is the star witness in the case being an injured person. The said witness has supported the case of the prosecution from beginning to the end. The witness boarded the same tonga from Kalyar Town in which the member of the complainant party were travelling to the District Courts, Sargodha. The witness was present in the tonga when he and others were intercepted by the accused party at the place of occurrence and were attacked. The witness vividly stated that all of them got down from the tonga hurriedly. Mirza Khan deceased ran away towards the college side, whereas Ghulam Nabi deceased ran towards the Commissioner's bungalow. Muhammad Riaz, Muhammad Nawaz and Muhammad Sadiq appellants chased Mirza Khan deceased, while Muhammad Iqbal, Muhammad Ansar and Muhammad Arshad appellants followed Ghulam Nabi deceased. He gave the description of the aggression committed by the appellants in minor details. He mentioned in his statement that Muhammad Riaz appellant gave two dagger blows to Mirza Khan deceased. Thereafter, Muhammad Nawaz and Muhammad Sadiq appellants gave knife blows to Mirza Khan hitting him on the chest. He also stated that Muhammad Ansar appellant gave a dagger blow on the person of Ghulam Nabi deceased. On the receipt of the injury, he fell down on the ground and thereafter, he repeated another blow on his back. Then all the accused gave a number of blows on the person of Ghulam Nabi deceased which landed on the various parts of his body. The witness disclosed that he went forward in order to rescue Ghulam Nabi whereupon Muhammad Nawaz appellant gave him a knife blow hitting him on the shoulder. He verified that Sanaullah and Muhammad Akram P.Ws. were present and stood nearby witnessing the occurrence. The evidence of this witness was supported in all its material particulars by Sanaullah (P.W.8).
9. The appellants, while making statements under section 342, Cr.P.C. denied the allegations levelled against them. They stated that they have been involved in the case because of enmity. The appellants did not lead any evidence in defence.
10. The learned trial Court discarded the recoveries of weapons used in the commission of crime. However, the ocular account plus motive provided by Muhammad Yasin and Sanaullah P.Ws. was relied upon. Learned counsel for the appellants contended that the evidence of Muhammad Yasin P.W. cannot be relied upon because he has been introduced in the case to support the prosecution version. Learned counsel stated that the injury on the person of Muhammad Yasin P.W. appears to be self‑suffered inasmuch as when the witness was examined by the Medical Officer, the injury was fresh and lot of blood was oozing out of the injury. Learned counsel submitted that there is no independent evidence produced by the prosecution to prove the offence of murder against the appellants because the place where the occurrence had taken place, was a busy road and that people were coming and going at the place of occurrence. Learned counsel submitted that Kalyar Town is a big town and that this is in the evidence that buses were available and, therefore, there was no occasion to hire a tonga to come from Kalyar Town to the District Court, Sargodha. Learned counsel stated that the fact of hiring of a tonga has been introduced to make Muhammad Yasin P.W. a truthful witness. He forcefully submitted that the presence of complainant Sanaullah P.W. cannot be established. The presence of the complainant at the spot cannot be believed for the reason that if he were there he would not have at all been spared by the appellants. Learned counsel submitted that even if the presence of Muhammad Yasin P.W. is admitted, he cannot be termed as an independent witness for the reason that the facts and circumstances of the case show that he is a partisan and he is linked with the complainant party. In these circumstances, learned counsel submitted that his evidence does not inspire confidence being highly interested. Learned counsel lastly argued that all the male members of the appellants have been roped in the case because of enmity. Learned counsel for the State supported the judgment of the learned trial Court, whereas Mr. Ijaz Husain Batalvi, learned counsel for the complainant, vehemently argued that there was absolutely no justification to award lesser penalty to Muhammad Sadiq, Muhammad Arshad and Muhammad Ansar appellant. Learned counsel attacked the mitigating circumstance under which the learned trial Court has given lesser penalty to the above‑mentioned three appellants. He submitted that 50 years is not a great age and similarly the ages of Muhammad Ansar and Muhammad Arshad appellants as 21 years and 25 years are not such small ages. On the contrary, the learned counsel submitted that the three appellants were definitely of mature ages and as such, they should have been given the maximum sentence as commanded by law.
11. We have heard learned counsel for the parties at considerable length and we have perused the record very carefully. We are of the view that the prosecution has successfully proved its case of double murder against the appellants beyond reasonable doubt. There is absolutely no force in the contention of the learned counsel for the appellants that Muhammad Yasin P.W. is not an independent witness and as such, should not be relied upon. We are not at all convinced', with his agreement. We find from the evidence that Muhammad Yasin P.W. was present at the spot. He came alongwith the other witnesses in the same tonga from Kalyar Town to Sargodha city. The witness is not admittedly related to the complainant party. Originally, he comes from Mianwali District and has settled in the village. He have given convincing explanation about his arrival from his village to Sargodha. He was working as a labourer in the city and, therefore, his coming to the city was nothing but natural. As far the objection as to why he shared the tonga in which the other witnesses were travelling, it is common, that several people will sit together in one tonga in order to save money. After all, the witness was a labourer and, therefore, he cannot be expected to hire the whole tonga from Kalyar to Sargodha city. There is, therefore, nothing abnormal in the conduct of the witness that he boarded the same tonga in which other witnesses were travelling. The fact that the witness and the other members of the complainant party came from the same village, was enough for the witness to join them in the same tonga. Additionally it is proved that the witness was injured at the hands of the appellants party. He had an injury by a sharp‑edged weapon on his shoulder. He was found in an injured condition by the Investigating Officer Muhammad Anwar Khan (P.W.10). This is the reason that he was immediately sent for medical treatment to the hospital in the company of Muhammad Shafi F.C. (P.W.2). The objection of learned counsel that the injury on the person of the witness was bleeding profusely will show that the injury was freshly caused. We are not convinced by this argument of learned counsel for the appellants. The duration of the injury has specifically been given by the Medical Officer (P.W.4). Thus, there is nothing to disbelieve the statement of the doctor. We have looked the statement of the witness from different angles and we have come to the conclusion that he is a truthful witness and definitely he has no axe to grind by giving false evidence. Furthermore, the witness remained in the hospital under treatment for 15 to 20 days. This fact has been proved from the medical evidence. The witness was subjected to lengthy cross‑examination by the learned counsel for the appellants but his evidence remained intact and was not at all shattered. Similarly, the complainant Sanaullah (P.W.8) is also a truthful witness. His arrival on the day of occurrence at the District Courts also appears to be natural because he was one of the accused persons in other criminal case in which next date of hearing was 19‑1‑1985. It is common knowledge that people involved in such like criminal cases do come to their counsel in order to receive instructions in their cases. Therefore, the witness did come alongwith others on the day of occurrence to meet his counsel. The evidence of Sanaullah complainant inspires confidence and is in line with the evidence of Muhammad Yasin P.W. Learned counsel attacked the evidence of the witness on the ground that he is closely related to the deceased. The objection is not at all convincing. Mere relationship to discard his evidence is not enough. In our view, he was present at the spot and he had come there with an object and,' therefore, there is no reason to disbelieve his evidence on the sole ground that he is related to the deceased. Thus, the objecting of learned counsel for the appellants to his statement is repelled being devoid of force. This witness like Muhammad Yasin (P.W.7) was cross‑examined at great length, but the defence failed to shatter the truthfulness of his evidence. We, therefore, place reliance on the testimony of Muhammad Yasin P.W.7 and Sanaullah complainant (P.W.8). The evidence of these two witnesses has proved beyond doubt the guilt against the appellants.' Learned counsel forcefully urged that if Sanaullah P.W. was there at the place of occurrence, he would not have been spared alive because he must have been the principal target of the appellants and on these premises the learned counsel contended that he has been later on introduced to become the complainant in the case. We are not ready to accept this contention of the learned counsel for the reason that the prosecution evidence shows that Ghulam Nabi deceased and Mirza Khan deceased when got down from the tonga, they ran away on opposite directions. This is also in the evidence that all the appellants separately chased both the deceased and they did not notice the presence of Sanaullah complainant. Even in view of the special circumstances of this case when all the appellants duly armed with deadly weapons were running after the two deceased and were busy in giving successive blows on their persons, it was natural that their whole attention was diverted towards their victims alone. It is just possible that they might not have noticed the presence of the complainant Sanaullah P.W. at the spot. The evidence shows that the complainant was travelling through the tonga and was sitting in the near seat when they were attacked by the appellants emerging from the nearby nursery. There is no force in the contention of learned counsel for the appellants that if the complainant was present, he would not have been spared by them. The number and nature of the injuries will further show that the appellants were fully determined to finish Ghulam Nabi and Mirza Khan deceased, their targets. There are as many as 21 injuries on the person of Ghulam Nabi deceased and Mirza Khan deceased received five injuries. It was next argued by learned counsel for the appellants that the lodging of the F.I.R. was delayed. We do not find any force in the contention. It appears form the record that the F.I.R. was lodged promptly without losing any time. The injured Muhammad Yasin P.W. was sent to the hospital for medical treatment. Two murders having taken place on the road a far away place from the village of the complainant, it was natural that the complainant will definitely take some time to approach the police for the registration of the case. We have carefully seen the record and the evidence and we find that the lodging of the F.I.R. was prompt in all respects. The medical evidence has also wholly corroborated the ocular account provided by Muhammad Yasin and Sanaullah P.Ws. Learned counsel submitted that the recoveries of weapons of offence have been discarded by the learned trial Court and, therefore, this will make the case of the prosecution doubtful. This argument is misplaced in law as well as in evidence available on the record. The recovery is not always the most important link in the case of the prosecution. Even if the recovery is kept aside, there is overwhelming evidence produced by the prosecution to prove the offence against the appellants. Relying on the ocular account of Muhammad Yasin and Sanaullah P.Ws. and the medical evidence plus the motive, we are of the view that it were the appellants who had admitted the enmity against the complainant party and they were sitting in an ambush to take revenge and they did so by committing two gruesome murders.
12. The upshot of the above discussion is that there is no force in the contentions of learned counsel for the appellants which are repelled. We, therefore, maintain the conviction and sentence of all the appellants under sections 324/149 and 148, P.P.C. We also maintain, the conviction and sentence of the appellants Muhammad Sadiq, Muhammad Arshad and Muhammad Ansar under section 302/149, P.P.C.', The conviction of Muhammad Iqbal, Muhammad Nawaz and Muhammad Riaz appellants under section 302/149, P.P.C. is maintained. However, regarding the quantum of sentence imposed on these three appellants, namely, Muhammad Iqbal, Muhammad Nawaz and Muhammad Riaz, we are of the view that there are mitigating circumstances in awarding lesser penalty to them, inasmuch as their brother, namely, Muhammad Ashraf was killed by Mirza Khan deceased and others two years before the occurrence. As for the murder of Ghulam Nabi, the doctor has opined that death was due to injuries Nos. 21 and 8 and injuries Nos. 3, 16, 17, 19 and 20 had also contributed to death but these injuries have not been specifically attributed to them and it is not possible to know as to who caused the fatal injuries to him. Furthermore, Muhammad Ansar co‑accused to whom one injury has been specifically attributed has already been awarded imprisonment for life. We, therefore, alter their sentence from death to life imprisonment. Their sentences shall run concurrently. The sentence of death awarded to Muhammad Iqbal, Muhammad Nawaz and Muhammad Riaz appellants is not confirmed. We this modification the appeal is dismissed.
13. We do not find any force in Criminal Revision No. 223 of 198E for enhancement of the sentence of Muhammad Sadiq, Muhammad Arshad and Muhammad Ansar appellants and dismiss the same in limine.
M.Y.H./M‑581/L Appeal partly accepted.