FRANCIS MASIH Versus STATE

MUHAMMAD RAFIQ TARAR, J.‑ ‑ Muhammad Aslam, Mumtaz alias Taja, Mukhtar alias Kalu, Muhammad Nawaz and Muhammad Afzal alias Annu, sons of Hassan Muhammad, cast Malhi, residents of Chak No. 127/10‑R, Elahi Bakhsh son of Naseer Bakhsh, caste Arain, resident of Mianpur, his sons Rahim Bakhsh and Karim Bakhsh, Shafqat son of Rehmat, caste Waraich, resident of. Chak No. 166/W.B., Muhammad Nawaz son of Ghulam Haider and Mumtaz son of Rehmat, Dhillu by caste, resident of Chak No. 126/10‑R, Ramzan son of Karim Bakhsh, caste Bhatti, resident of Chak No. 127/10‑R, Warn and Ehsan, sons of Muhammad Din, caste Arain, residents of Chak No. 125/10‑R and Ashraf son of Maula Bakhsh, caste Arain, resident of Chak No. 166/W.B., were tried by the Additional Sessions .fudge, Multan, on the allegations that on 1‑9‑1979 at about sunrise time they formed themselves into an unlawful assembly with the common object of committing the murder of Abdul Aziz deceased and for making murderous assault on Karim Bakhsh, Rahim Bakhsh, Pehalwan, Ramzan and Muhammad Bakhsh P.Ws., and in prosecution of that common object of the aforesaid unlawful assembly actually committed the murder of Abdul Aziz deceased and made murderous assault on aforementioned P.Ws., in the area of Chak No.120/10‑R. By judgment dated 1‑3‑1986, Elahi Bakhsh, Shafqat, Muhammad Nawaz son of Ghulam Haider, Mumtaz son of Rehmat, Ramzan sons of Karim Bakhsh and Ehsan son of Muhammad Din were acquitted of all the charges. Karim Bakhsh and Rahim Bakhsh sons of Elahi Bakhsh and Ikram son of Muhammad Din were convicted under section 148/325, P.P.C. They were sentenced to R.I. for six months and a fine of Rs.1,000 each under section 325, P.P.C. Karim Bakhsh was also ordered to pay Rs.3,000 as compensation under section 544‑A, Cr.P.C. to injured P.Ws. Rahim Bakhsh, Ramzan and Pehalwan, Rahim Bakhsh was ordered to pay Rs.2,000 as compensation to Karim Bakhsh P.W. and Ikram was ordered to pay Rs.1,000 as compensation to Karim Bakhsh P.W. Ashraf was convicted under section 148/326. He was sentenced to R.I. for two years and a fine of Rs.4,000 under section 326, P.P.C. He was further ordered to pay Rs.4,000 as compensation to Pehalwan P.W. Muhammad Aslam. Mumtaz alias Taja, Mukhtar, Muhammad Nawaz and Muhammad Afzal sons if Hassan Muhammad were convicted under section 302, PP.C. and sentenced to imprisonment for life and a fine of Rs.5,000 each, or in default in the payment thereof to undergo R.I. for five months each. They were also ordered to pay Rs.5,000 each as compensation to the heirs of Abdul Aziz deceased. They were also convicted under section 148, P.P.C. Muhammad Aslam was sentenced thereunder to R.I. for two years but no sentence was awarded to the remaining convicts el the ground that they had already suffered detention `for more than the prescribed punishment under section 148, P.P.C.'. Muhammad Aslam, Mumtaz alias Taja, Mukhtar, Nawaz and Muhammad Afzal convicts have filed Criminal Appeal No. 50 of 1986; Rahim Bakhsh and Karim Bakhsh have filed Criminal Appeal No. 56 of 1986 and Ashraf has filed Criminal Appeal No. 46 of 1986 to challenge their conviction and sentences. Sultan complainant has fled Criminal Revision No. 110 of 1986 praying that sentence of Muhammad Aslam, Mumtaz, Mukhtar, Muhammad Nawaz and Muhammad Afzal be enhanced to death. All the appeals and Criminal Revision shall be disposed of by this judgment.

2. The F.I.R. version of the occurrence is that a water dispute between Muhammad Aslam accused and Karim Bakhsh. P.W. resulted in the registration of a case under sections 148, 307 and 326/149, P.P.C. against Karim Bakhsh P.W. and his relatives. On 31‑8‑1979 Inspector, P.S. Kabirwala, visited the spot in connection with the investigation of that case. On the following day at about sunrise time Sultan complainant, his brothers Pehalwan and Ramzan, his cousins Karim Bux aforesaid and Rahim Bakhsh, Abdul Aziz deceased and Muhammad Bakhsh were proceeding towards Khanewal to attend the Court in connection with the aforesaid case. They were on four cycles. When they reached the southern bank of Rajbah 10‑R, near Bhaini Chah Kakkianwala, in the area of Chak No. 120/10‑R, the accused persons namely Muhammad Aslam and Mumtaz alias Taja sons of Hassan Muhammad, Shafqat and Rahim Bakhsh armed with guns, Muhammad Nawaz, Muhammad Afzal alias Annu and Mukhtar alias Kalu, sons of Hassan Muhammad, Karim Bakhsh and Ikram armed with hatchets, Elahi Bakhsh, Muhammad Nawaz son of Ghulam Haider, Mukhtar son of Rehmat, Ramzan and Ehsan armed with Sotas and Muhammad Ashraf armed with pistol emerged from a Jawar field. Muhammad Aslam raised a Lalkara that Abdul Aziz and Karim Bakhsh etc. would not go alive upon which the members of the complainant party got down from the cycles. Sultan complainant ran to a cotton field and concealed himself. Muhammad Aslam and Mumtaz alias Taja fired their guns hitting Abdul Aziz deceased on the legs; Rahim Bakhsh fired his gun hitting the legs of Karim Bakhsh. P.W.1 Ashraf fired his pistol hitting the legs of Pehalwan P.W., then Muhammad Nawaz, Mukhtar alias Kalu and Afzal alias Annu gave hatchet blows to Abdul Aziz deceased hitting his head, right eye and right upper arm, respectively. Ikram accused gave a hatchet blow on the head of Karim Bakhsh. P.W. Rahim Bakhsh suffered a hatchet blow on the head at the hands of Karim Bakhsh accused. On receiving injuries, Abdul Aziz, Karim Bakhsh, Rahim Bakhsh and Pehlwan fell to the ground while Muhammad Bakhsh and Muhammad Ramzan started running. Muhammad Bakhsh was chased by Ramzan accused who gave him Sota blows. Elahi Bakhsh, Karim Bakhsh, Muhammad Nawaz Malhi and Mumtaz son of Rehmat chased Ramzan P.W. and injured him in a sugarcane field. He was brought back tie the spot and thereafter all the accused dragged Abdul Aziz, Pehalwan, Karim Bakhsh and Rahim Bakhsh to the tubewell of Aslam Malhi. Muhammad Ramzan P.W. was also taken there. The accused persons caused more injuries to the victims with hatchets, Sotas and butts of the guns and then went away towards Chak No.127/10‑R. Haji Abdul Aziz succumbed to his injuries at the spot. In the meantime Rafiq Ahmad and Rehmat also reached the spot. Leaving them with the dead body and the injured P.Ws., Sultan complainant started for the police station. On the way he learnt that S:H.O. P.S. Jahaman was present in Chak No. 136/10‑R. He went there and reported the occurrence to him at 8‑15 a.m. vide his statement Exh.P.AA, on the bass of which formal F.I.R. Exh.P.AA/1 was recorded at Police Station Jahanian at 8‑55 a.m.

3. After recording the statement of the complainant, Muhammad Arshad, S.H.O. P.S. Jahanian, proceeded to the spot. He found Karim Bakhsh, Pehalwan, Ramzan and Rahim Bakhsh P.Ws. lying injured in a tractor‑trolly parked at service road in the area of Chak No.127/10‑R. They were in a serious condition. They were taken to the hospital. He found the dead body of Abdul Aziz lying in Killa No.18 of Square No.30 across the Rajbah. He prepared the injury statement Exh.P.KK and inquest report Exh.P.LL and despatched it to the mortuary for post‑mortem examination. Thereafter, he inspected the spot. He secured some blood‑stained earth from under a Sheesham tree between service road and the Rajbah. There were dragging marks from the Sheesham tree up to the bank of the canal with blood stains at different places. The Sub‑Inspector secured blood stained earth from eight different spots along the dragging marks. There also existed blood stains on the line of dragging from the service road to the bank of the Rajbah at a distance of 67 Karams upstream from the aforesaid Sheesham tree. There were blood stains on four different spots on the line of dragging and he secured blood‑stained earth from those spots. There were blood stains on the grass along the bank of the Rajbah at a distance of 65 Karams further upstream from the second line of dragging. The S.H.O. took blood‑stained grass from that spot. Then he took blood‑stained earth from under the dead body of Abdul Aziz. The blood‑stained earth taken from the aforesaid places and blood‑stained grass were made into separate sealed parcels vide memo. Exhs.P.FF. to P.II. The S.H.O. secured three empty cartridges from the Watt of Killa No.9 and made them into separate parcels vide memo. Exh.P.JJ. He searched for the accused but they were not available. Then he reached Nishtar Hospital, Multan, and inquired from the doctor if the injured P.Ws. were fit to make statements to which he replied in the negative. At the hospital, Sultan P.W. produced blood‑stained clothes Exhs.P.13 to P.15 of Rahim Bakhsh, Exhs.P.16 to P.19 of Ramzan, P.20 to P.23 of Karim Bakhsh and P.24 to P.27 of Pehalwan which were taken into possession vide memos. P.BB., P.CC., P.DD., and P.EE.

4. Thereafter, Muhammad Arshad S.H.O. was transferred and the investigation was taken over by his successor Muhammad Iqbal (P.W.16). On 29 9‑1979 he arrested 11 accused persons. Muhammad Afzal, Mukhtar, Karim Bakhsh and Ikram produced hatchets P.1, P.2, P.3 and P.4 respectively which were taken into possession vide memos. Exhs.P.B., P.C., P.D. and P.E., respectively. Ehsan, Ilahi Bux, Mumtaz (son of Rehmat) Muhammad Nawaz (son of Ghulam Haider) and Ramzan produced Sotas P.5, P.6, P.7, P.8 and P.9 which were taken into possession vide memos. Exhs.P.F., P.G., P.H., PJ. and P.K. respectively. Mumtaz alias Taja accused led to the recovery of gun P.10 from a room of his Dera which was taken into possession vide memo. Exh.P.L. Muhammad Afzal accused led to the recovery of gun P.11 from the cotton sticks lying in the cattle shed vide memo. Exh.P.M. Muhammad Ashraf accused led to the recovery of pistol P.5 from a cotton field near the Dera of Aslam accused which was taken into possession vide memo. Exh.P.N. Complete challan was submitted by Muhammad Shafi S.H.O. showing Muhammad Aslam, Muhammad Nawaz son of Ghulam Haider, Shafqat Ali and Elahi Bux in column No.2 thereof.

4‑A. On 1‑9‑1979 Dr. Abdul Khaliq Medical Officer, Civil Hospital, Jahanian conducted the autopsy on the dead body of Haji Abdul Aziz deceased and found as many as 14 injuries on his person, caused by fire‑arm, sharp and blunt weapons. Injuries Nos.1, 2, 4 and 5 were caused by sharp‑edged weapon, Nos. 3, 6 to 9 and 12 to 14 by blunt weapon and Nos. 10 and 11 by gun shot. Injuries Nos.1, 2, 4, 6 and 9 to 12 were grievous and rest were simple. Death was due to the fracture of the atlas, axix vertibrea (occipito atlas joint).

5. On the same day the same doctor examined Muhammad Ramzan, Rahim Bakhsh Pehlwan and Karim Bakhsh P.Ws.

Muhammad Ramzan had 11 injuries out of which injuries Nos.4 and 11 (perforation of both eyes and fracture of second upper incisor respectively) were grievous. Injuries Nos. 1,2 and 7 were kept under observation. Injuries Nos. 1 to 3 were caused by sharp‑edged weapon and the rest with blunt weapon.

Rahim Bakhsh P.W. had 23 injuries on his person out of which injuries Nos. 3 and 6 (incised wounds on right side of head and nose, respectively) were grievous. Injuries Nos. 16 to 19 were kept under observation. Injuries Nos. 16 and 18 were caused by sharp‑edged and the rest with blunt weapon.

Muhammad Bakhsh P.W. had 3 injuries simple in nature caused by blunt weapon.

Pehalwan had 20 injuries out of which Nos. 7, 13 and 15 (fracture of mid humerous bone, perforation of both eyes and fracture of right leg, respectively) were grievous, Nos. 1, 8, 12 and 20 were kept under observation injuries Nos. 7 and 15 were caused by fire‑arm and the rest with blunt weapon.

Karim Bakhsh P.W. had 26 injuries out of which injuries Nos.3, 9. 10 and 11 (perforation of both eyes, incised wound on right leg, gun shot wound on right leg, fracture of right tibae, respectively) were grievous. Injuries Nos.1, 2, 13 and 17 were kept under observation. Injures Nos. 1 and 2 were caused by sharp- edged weapon, 10, 12, 14, 15 and 16 by fire‑arm and rest with blunt weapon.

On 3‑10‑1979, the same doctor examined Muhammad Afzal accused on the request of S.H.O. Police Station Jahanian. He was having pain in the head, right cheek and over the body. According to the doctor there was no visible injury except that he could feel the presence of some hard substance in the cheek.

Dr. Riaz Hussain appearing as P.W.18 stated that on 29‑8‑1976 while posted as M.O., Civil Hospital Jahanian, he examined Muhammad Afzal and found 5 injuries on his person out of which injuries Nos. 1 and 2 (on right side of skull and right cheek, respectively) were by fire‑arm. There was a pellet on the right side of skull frontal bone and another at right maxilla opposite the first upper molar tooth. The duration of injuries was 30 hours.

6. In support of its case, the prosecution examined three eye‑witnesses namely Sultan complainant, Karim Bakhsh and Ramzan P.Ws. It also relied on the evidence relating to motive and recovery of weapons of offence at the instance of the accused persons.

7. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. Muhammad Aslam appellant when asked why this case against him, made the following statement:

"The complainant‑party and Muhammad Afzal Gujjar S.I. are my old enemies. They have concocted this false case against me. I was in the District Court's premises Multan at the time of the alleged occurrence. I had taken my plea of alibi which had been verified during the course of investigation and I was declared innocent."

Mumtaz alias Taja appellant stated that he was a witness against injured P.Ws. Karim Bakhsh, Pehalwan and Ramzan in a case under section 430 of the P.P.C. Mukhtar appellant stated that he was falsely implicated being the brother of co -accused Muhammad Aslam. Muhammad Nawaz appellant stated that he was the complainant in a case under section 430, P.P.C. against Karim Bakhsh, Pehalwan and Ramzan and his brother Mumtaz was also a P.W. against them, therefore, he was falsely implicated. Muhammad Afzal appellant gave a counter‑version of the occurrence as under:‑

"I am innocent. The complainant party variously armed with fire‑arm etc. came to our tubewell at night between 31‑8‑1979 and 1‑9‑1979 and started firing in result of which I was injured."

Rahim Bakhsh appellant maintained that he was falsely implicated as he was a complainant in a murder case against the complainant party relating to the murder of the mother of Muhammad Aslam appellant. Karim Bux and Muhammad Ashraf appellants stated that it was a false case.

8. Mr. Manzoor Hussain Shah, Advocate, District Courts, Multan, and Maqbool Ahmad, Record‑keeper, Sessions Court, Multan, appeared as defence witnesses while Abdul Karim D.S.P., Lodhran, and Ghulam Ahmad Shah, D.S.P. Crimes Branch, Lahore, were examined as Court witnesses.

9. After examining the evidence on the record, the trial Judge came to the conclusion that `inception of the occurrence is shrouded in mystery' and pre concert of the accused to cause these injuries to the deceased and the P.Ws. is not as such proved and the individual part played by the accused has to be determined from the material on the record'. He further observed that no specific part had been assigned to Shafqat accused in the F.I.R. and the eye‑witnesses had `clearly perjured' when they stated that he had caused fire‑arm injuries to Rahim Bakhsh accused. The trial Judge did not rely on the evidence relating to the recoveries of weapons and taking the individual part attributed to each accused into account convicted and sentenced them as mentioned above.

10. Learned counsel for the appellants contended that a large number of persons have been implicated for one murder and during the investigation as many as four of them were found innocent, therefore, it is not possible to sift the grain from the chaff and in that view of the matter all the accused are entitled to the benefit of doubt. It was further submitted that the eye‑witnesses have serious animosity with the accused persons, therefore, their evidence cannot be accepted unless corroborated from an independent and unimpeachable source and no such corroboration being available, their evidence cannot form a basis for conviction.

The learned State counsel supported the impugned judgment. The learned counsel for the complainant supported the conviction of the appellants and strenuously argued that those found guilty of murder deserve capital punishment.

11. At the trial Sultan complainant, Karim Bakhsh and Muhammad Ramzan were examined as eye‑witnesses while injured P.Ws. Muhammad Bakhsh, Pehlwan and Rahim Bakhsh were given up as unnecessary. Sultan complainant and Ramzan P.Ws. are brothers inter se. Abdul Aziz deceased was the son of their paternal‑aunt. Karim Bakhsh P.W. is also related to them. The eye witnesses are not only related to the deceased but they have also long standing enmity with the accused persons. In the year 1975 mother of Aslam Mali accuses was murdered and Sultan complainant, Karim Bakhsh P.W., Ramzan P.W., Abdul Aziz deceased and given up P.Ws. Rahim Bakhsh and Pehlwan were tried for the said murder. Karim Bakhsh, Rahim Bakhsh and Pehlwan were convicted and sentenced to imprisonment for life. Mehmood Bhatti, first cousin of Ramzan accused was murdered 10 years prior to the occurrence and a case was registered against Sultan complainant, Ramzan P.W. and aforesaid Pehlwan. Ilahi Bakhsh accused got a case registered under section 325, P.P.C, against Abdul Aziz deceased, Karim Bakhsh, Rahim Bakhsh and Pehlwan aforementioned. On 4‑6 1979 Muhammad Afzal accused got a case registered under sections 148, 307 and 326/149, P.P.C. against Sultan Karim Bakhsh, Rahim Bakhsh, Pehlwan and others. According to the prosecution this case was pending in the Court of Magistrate at Khanewal and the deceased and his companions had to appear in the said Court on the day of occurrence. It is also the prosecution version that on the preceding evening Inspector Police, Kabirwala, had visited the chak in connection with the investigation of that case. It is thus evident that the parties had long standing severe enmity with each other and in that view of the matter, the evidence of the aforesaid eye‑witnesses, in order to be accepted, would require corroboration from an independent and unimpeachable source.

12. Sultan P.W. claims to have seen the occurrence from the beginning to the end. He was an accused in the case under section 307, P.P.C. registered at the instance of Afzal accused; he was also accused for the murders of Mehmood Bhatti and mother of Aslam Mali accused. There was no love lost between him and the accused persons and if he had been present at the spot they would not have spared him but he did not suffer even a scratch during the whole occurrence, He clams to have concealed himself in a cotton field but in cross‑examination he admitted that while in the cotton field he could be seen by the accused but none of them fired at him as he had concealed himself. The explanation is unconvincing. According to his own showing the cotton crop was 3 feet high and he could be seen by the accused. He claims to have seen even the latter part of the occurrence which took place at the tubewell of Muhammad Aslam accused. In his police statement Exh.D.A. with which he was duly confronted he had stated that he went to his house from the cotton crop. In cross‑examination he admitted that tubewell where ultimately Abdul Aziz and the injured P.W. were taken was not visible from the cotton crop where he had concealed himself. In the circumstances it is doubtful that he had seen the occurrence and we exclude his evidence from consideration.

13. Karim Bakhsh and Muhammad Ramzan P.Ws. had the stamp of injuries on their persons. Karim Bux had as many as 26 injuries out of which 4 were grievous. Two injuries on his person were caused by sharp‑edged weapon, five by fire‑arm and the rest with blunt weapon. Muhammad Ramzan had as many as 11 injuries, out of which, two were grievous. Three injuries were caused by sharp edged weapon and rest with blunt weapon. The injuries on both the eyes of these P.Ws. were declared grievous in nature. In the circumstances their presence at the spot is not open to the slightest doubt. During the arguments our attention was drawn to the fact that they had improved their statements at the trial saying that Shafqat accused had fired at Rahim Bakhsh whereas no such role had been attributed to him in their statements under section 161., Cr.P.C. with which they were duly confronted. Relying on this improvement and the fact that no fire‑arm injury was found on the person of Rahim Bakhsh, it was contended that aforesaid eye‑witnesses were unworthy of credence, therefore, their evidence should be rejected in toto. The argument is misconceived. The mere fact that the eye witnesses improved their statements regarding the role of a particular accused is no ground for discarding their evidence in toto. Here we may, with advantage, refer to the observation of the Supreme Court in Muhammad Nawaz v. The State 1969 S C M R 132 that the principle that a witness found to be false in part shall be disbelieved in whole has been held to be inapplicable in such cases'.

14. The evidence of Karim Bakhsh and Muhammad Ramzan that they and their companions including the deceased were assaulted near the Rajbah and were then forcibly dragged to the Dera of Muhammad Aslam appellant finds substantial corroboration from the medical evidence and the statement of the Investigating Officer which almost goes unchallenged on the record. Muhammad Arshad S.H.O. P.S. Jahanian, who visited the spot on the sane day stated:‑

"There were marks of dragging from the spot under the Shisham tree right upto the bank of the canal and there existed blood stains on the marks of the dragging at different places. I took into possession blood stained earth from 8 different spots from the marks of dragging. There also existed blood stains on a line of dragging from service road to the bank of the Rajbah at a distance of about 67 Karams upstream from the spot under the Shisham tree mentioned earlier. There were blood‑stains on four different spots on the line of dragging and I took into possession blood‑stained earth from these four different spots. Blood stuns also existed on the grass along the bank of the Rajbah at a spot at a distance of 65 Karams further on upstreem from the second line of dragging. I also took into possession blood‑stained grass from this spot."

The above statement was not challenged in cross‑examination. The presence of dragging marks on the ground and recovery of blood from various points coupled with the fact that the deceased and injured P.Ws. had a large number of abrasions on their backs lend substantial support to the view that the occurrence had taken place in the same manner as narrated by the aforesaid eye‑witnesses. In this case one person was murdered and as many as 5 were injured. The deceased had 14 injuries caused by fire‑arm, sharp and blunt weapons. Injury No.13 consisted of multiple abrasions all over the back. Ramzan P.W. had 10 injuries of sharp and blunt weapons. Rahim Bakhsh had 23 injuries caused by sharp and blunt weapons. Injury No.8 consisted of multiple bruises all over the back. Muhammad Bakhsh had 3 simple injuries, caused by blunt weapons. Pehlwan had 20 injuries caused by fire‑arm and blunt weapons and Rahim Bakhsh had 26 injuries of fire arm and sharp and blunt weapons. Injury No.26 consisted of multiple abrasions on the back. Such a large number of injuries on a large number of persons would indicate that a large number of persons armed with fire‑arms, blunt and sharp weapons had attacked the members of the complainant party in pursuance of a design. We see no substance in the finding of the trial Court that the inception of the occurrence is shrouded in mystery' or that `pre‑concert of the accused‑‑ is not as such proved and the individual part played by the accused has to be determined‑‑' The number and nature of injuries and act of dragging as many as 5 persons to the tubewell situate at a distance of 4 Acres lend material support to the view that it was a determined attack and the assailants had come to the spot with full preparation. The attack by its very nature was such that a group of persons was required to carry it out.

15. The members of the accused party did not suffer even a scratch during the occurrence which would further indicate that it was a one sided affair in which the members of the complainant party were taken unaware. The plea raised by Muhammad Afzal accused that the complainant party armed with fire‑arms etc. came to his tubewell at night and started firing in result of which he was injured has been proved to be false. He tried to take undue advantage of the injury which he had actually suffered more than 3 years prior to the present occurrence. Dr. Riaz Hussain Medical Officer Civil Hospital, Jahanian, examined him on 29‑8 1976 and besides other injuries found a lacerated wound on the right cheek. This injury was caused by fire‑arm. According to the doctor a pellet at right maxilla opposite the first upper tooth was seen. Dr. Abdul Khaliq examined this accused on 3‑10‑1979 at the request of S.H.O., Police Station Jahanian. The accused was having pain in the head, right cheek and over the body. He was advised X‑Ray. On X‑Ray examination, two small rounded discrete radio opaque shadows were seen in the right frontal region and right cheek area. The doctor could not give the duration of this injury because there was no visible injury except that he could feel the presence of some hard substance in the cheek. The plea raised by Muhammad Afzal appellant has, therefore, no substance at all.

16. Admittedly the mother of Muhammad Aslam Mali accused was murdered in the year 1975 for which Abdul Aziz deceased, injured P.Ws. Karim Bakhsh, Muhammad Ramzan, Sultan complainant and given up P.Ws. Rahim Bakhsh and Pehlwan were prosecuted. Karim Bakhsh, Rahim Bakhsh and Pehlwan were convicted and sentenced to imprisonment for life. Mumtaz alias Taja, Muhammad Nawaz, Muhammad Afzal and Mukhtar accused (sons of Hassan Muhammad) are real brothers of aforesaid Muhammad Aslam Mali, therefore, each one of them had a strong motive to do away with the deceased. Being brothers inter se, they were expected to join hands for mounting the assault on the deceased and injured P.Ws.

17. Muhammad Aslam Mali accused was declared innocent during the investigation and shown in column No.2 of the challan. However, the opinion of the police officer is not relevant for the purpose of determining the innocence or I guilt of the accused. This appellant maintained that at the time of occurrence, he was present in the District Courts, Multan; he had taken the plea, of alibi which was verified by the Investigating Officer and he was declared innocent. He examined Manzoor Hussain Shah, Advocate and Maqbool Ahmad Record keeper Sessions Court, Multan, in his defence. Manzoor Hussain Shah, Advocate stated that on 1‑9‑1979 Muhammad Aslam accused met him at 7‑00 a.m. in his chamber. He attested a bond executed by him as surety for one Jafar who was involved in a case pending in the Court of Additional Sessions Judge, Multan. The witness further stated that he appeared before the concerned Court at about 9‑10 a.m. on the same day and that he made such statement before different Investigating Officers. In cross‑examination he admitted that Aslam accused was known to him since his childhood because he owned land in Chak No. 127/10‑R i.e. Chak of Aslam accused. This Chak is at a distance of 35/40 miles from Multan City. It will be noted that the case was firstly investigated by Muhammad Arshad S.H.O. and then by his successor Muhammad Iqbal S.H.O. The witness admitted that he never appeared before any of them to plead alibi for Aslam accused. For the first time he appeared before Abdul Karim D.S.P. (C.W.1) who visited the spot for investigation on 9‑10‑1979 i.e. more than a month after the occurrence. Furthermore, the occurrence took place at about sunrise time i.e. at about 5‑45 a.m., therefore, presence of Aslam accused at Multan at 7‑00 a.m., does not necessarily show that he was not present at the spot at the time of occurrence.

18. The ocular evidence produced by Karim Bakhsh and Ramzan P.Ws. finds substantial corroboration from the facts and circumstances detailed in paras. 13, 14 and 16 above and we are satisfied that the prosecution has brought home charges of rioting and murder against Muhammad Aslam, Mumtaz alias Taja, Muhammad Nawaz, Muhammad Afzal and Mukhtar appellants (sons of Hassan Muhammad).

19. At this stage we may observe that the evidence relating to recoveries is highly unsatisfactory and it has been rightly discarded by the learned trial Judge. According to Muhammad Iqbal Sub‑Inspector the accused were arrested on 29‑9 -1979 whereas the recovery memos are dated 28‑9‑1979. Furthermore the recoveries were allegedly effected 27 days after the occurrence. We are not inclined to believe that the accused had kept the weapons with them for such a long time.

20. Now, we proceed to consider the question of sentence. The occurrence took place more than nine years back and the appellants faced the trial for a period of more than six years. According to the doctor, death was due to fracture of the atlas axis vertebrae (injury No.14) which had been caused by blunt weapon. At a later stage he stated that death was due to oligemic shock, i.e. shuck produced by deficiency in the volume of the blood. According to him, there was excessive blood loss from the body due to sharp weapon injuries causing fracture of wrist‑joint, left radius ulna bones and left tibia fabula. This statement indicates that death was due to cumulative effect of the injuries which caused aforesaid fractures resulting in loss of blood. In the circumstances, sentence of imprisonment for life and fine of Rs.5,000 each awarded by the trial Court to aforesaid rive convicts is maintained. Their appeal (Criminal Appeal No.50 of 1986) and Criminal Revision No. 110 of 1986 are dismissed.

No appeal or revision has been filed by the State or the complainant against the acquittal of remaining accused regarding the charge of murder.

Ashraf accused has been convicted under sections 148 and 326, P.PC. He was sentenced to R.I. for two years and a fine of Rs.4,000 under section 326. P.P.C. and further ordered to pay Rs.4,000 as compensation to injured P.W. Pehlwan. He has challenged his conviction and sentences through Criminal Appeal No. 46 of 1986. His appeal must succeed for the simple reason that Pehlwan P.W. did not enter the witness‑box to testify that he suffered injuries at the hands of this appellant. His conviction and sentence and order for payment of compensation are set aside. He is on bail. He shall be discharged from his bail bond.

Karim Bakhsh appellant was convicted under sections 148 and 325, P.P.C. He was sentenced to R.I. for six months and a fine of Rs.1,000 or in, default to undergo R.I. for two months under section 325, P.P.C. He was further ordered to pay Rs.3,000 as compensation to be equally divided amongst Rahim Bakhsh, Ramzan and Pehlwan P.Ws.

Rahim Bakhsh was convicted under sections 148 and 325, P.P.C. He was sentenced to R.I, for six months and a fine of Rs.1,000 under section 325. P.P.C and was ordered to pay Rs.1,000 as compensation to Karim Bakhsh PW. It is in the impugned judgment that both of them remained in custody as under‑trial since 28‑9‑1979. They were convicted on 1‑3‑1986 and their sentence was suspended by this Court on 8‑4‑1986. In this way they have undergone detention as under‑trials for more than six years and five months and suffered R.I. for one month and eight days each. In the circumstances, their sentence is reduced to the term of imprisonment already undergone by them. They shall be discharged from their bail bonds.

H.B.T./M‑1076/L

Order accordingly,