1. M. R. KHAN, J:-Ghulam Sarwar and Ashraf both of whom are sons of Khushi Muhammad are the appellants in Criminal Appeal No. 102 of 1969. Allah Ditta, son of Muhammad Hussain and Khalil, son of Suba are the appellants in Criminal Appeal No. 103 of 1969. These four appellants along with Khushi Muhammad and Sardar were tried for offences under section 148, 302/149, 307/149 (two counts) and 325/149 of the Pakistan Penal Code by the Additional Sessions Judge, Gujrat. Akbar, another son of Khushi Muhammad, who was said to have actively participated in the crimes as another member of the unlawful assembly, absconded and- could not, therefore, be placed on trial. The trial Judge convicted all the said six accused persons and sentenced them as under :-
(i) Rigorous imprisonment for 3 years, each, under section 148, P. P. C.
(ii) Transportation for life under section 302/149, P. P. C., each.
2. (i.e) Rigorous imprisonment for 7 years, each, under section 326/149, P. P. C.
(iv) Rigorous, imprisonment for 2 years, each, under section 325/149, . P. C. And
(v) Rigorous imprisonment for one month each under section 323/149, P. P. C.
3. The sentences under the various sections were ordered to run concurrently.
4. On appeal, by the 'six convicted persons, a learned Single Judge of the High Court of West Pakistan.
5. Lahore, maintained the convictions and sentences atif Ghulam Sarwar, Ashraf, Allah Ditta and Khalil, 'but acquitted Khushi Muhammad and Sardar by way of abundant caution.
6. Khushi Muhammad and his sons, namely, 'Ghu1am Sarwar, Ashraf and the absconder Akbar had a grievance against the complainant party with regard to possession of some land which Khushi Muhammad had pre-empted. On the day preceding the date of occurrence, Akram (deceased) had quarreled with the female members of Khushi Muhammad's family concerning the said pre- empted land. This was stated by the prosecution to be the motive for the occurrence.
7. The prosecution case was that on the 3rd November 1964, at about 10 a. m., Akram (deceased) was proceedings towards his dera at a distance of 1 --, miles towards north from their village Shadiwal.
8. Khushi Muhammad and his sons also belonged to the same village, and they had also a dera near the sera of Akram. The distance between the deras of the two parties was about 20/25 karams. As Akram reached near the dera of Khushi Muhammad, the latter shouted out that Akram should not be spared whereupon the other accused persons launched an attack on him. Of them, Akbar (absconder) and Ghulam Sarwar were armed with hatchets, Khalil was armed with a kehi and the remaining accused, namely, Ashraf, Allah Ditta and Sardar were armed with sotas Akbar gave a hatchet blow to Akram on his head. As Akram fell down, he was given another hatchet blow on the head by Ghulam Sarwar. Ashraf and Allah Ditta then inflicted sofa blows on Akram's head. Ghulam Rasul, (P. W.'8), the father of Akram was then present in his dera, along with Muhammad Aslam (P.
9. W. 5), Bashir Ahmad (P. W.' 6) and Ghulam Muhammad (P. W. 7). Having hearing the row, these persons rushed to the spot to rescue Akram. Of them, Ghulam Rasul was ahead of ail. As Ghulam Rasul reached the spot, Akbar (absconder) gave a hatchet ' blow on his head and Ghulam Samar gave Ghularn Rasul a hatchet blow which hit the former's heel of the left foot. 'khalil who had been armed with a kehi, gave a blow oil the rills of Ghulam Rasul with its blunt side. The rest of the assailants then gave Ghulam Rasul sota blows. P. Ws. Aslam Bashir and Ghulam Muhammad who had come to the scene with stick had then exchanged blows with the assailants with the result that some of the accused persons sustained injuries. In the course of the fight, P. W Aslam also sustained injuries. After the incident was over, the accused persons went away towards their village.
10. Akram and Ghulam Rasul who had sustained serious injuries were removed to the Civil Hospital, Gujrat, where they were examined and given medical aid. After obtaining a certificate from the Medical Officer, Gujrat Hospital, P. W. Aslam went to Police-Station, Kunjah and lodged an F. I. R.
11. There at 4 p.m. The same day. The case was registered under sections 148 and 307/149 of the Penal Code. Akram, however, died in the hospital the same evening. Thereupon, the offence was altered to one of murder.
12. On the receipt of an information from the hospital about the death of Akram, the S. H. O. Of Police Station -Gujrat City went to the hospital, prepared a statement of the injuries on the person of Akram, deceased. He then sent the dead body to the mortuary for post-mortem examination.
13. Meanwhile, Syed Murid Mehdi Shah, S. H. O. Police Station Kunjah took up the investigation of the case. He visited the spot, took into possession blood-stained earth and blood-stained straws and sent the same to the Expert for examination. The Medical officer, Gujrat, examined the injured P. Ws.
14. Ghulam Rasul and Muhammad Aslam. On the side of the accused party, Khushi Muhammad, Ashraf and Akbar who had sustained injuries appeared before the Medical Officer of the dispensary in village Shadiwal and received first aid.
15. The post-mortem examination revealed that Akram, deceased sustained four injuries on the head of which two were incised wounds. P. W. Ghulam Rasul sustained as many as ten injuries of which three were incised wounds including an incised wound on the back of the left heel and the others were either abrasions or swellings. P. W. Muhammad Aslam sustained two injuries on the head caused by blunt weapon. The injuries sustained by the accused Khushi Muhammad, Ashraf and Akbar were all simple.
16. The convictions of the appellants rested on the direct evidence of Muhammad Aslam (P. W. 5), Bashir Ahmad (P. W. 6), Ghulam Muhammad (P. W. 7) and Ghulam Rasul (P. W. 8). Of them, P. Ws.
17. Aslam and Ghulam Rasul themselves, as already stated, had sustained injuries. All these four witnesses are, no doubt, related to the deceased, but their evidence was fully believed by both the learned trial Judge and learned Single Judge of the High Court on the ground that they were the natural witnesses ; that two of them having sustained injuries were necessarily involved in the occurrence and that there was a motive on the part of the accused persons for launching an attack on Akram, deceased. The evidence of these four eye--witnesses is uniform as regards the injuries caused to Akram, deceased and P. W. Ghulam Rasul. They unanimously stated that Akbar (absconder) and Ghulam Sarwar were armed with hatchets; that Khalil carried a kehi and Ashraf and Allah Ditta were armed with sotas. They further unanimously stated that Akbar gave the first hatchet blow on the head of Akram which was followed by another hatchet blow on his head given by Ghulam Sarwar. Ashraf and Allah Ditta delivered blows on Akram's head with sotas. This unanimous evidence finds support from the medical evidence according to which all the injuries on the person of the deceased were inflicted on hill head and that two of them were incised wounds and the remaining two were contused wounds. With regard to the injuries inflicted on P. W.
18. Ghulam Rasul, all the eye-witnesses were again unanimous that Akbar gave a hatchet blow on his head ; that Ghulam Sarwar gave a hatchet blow hitting the heel of Ghulam Rasul's left foot and that Khalil gave a kehi blow to Ghulam Rasul on his ribs with its blunt side. These injuries were found on the person of Ghulam Rasul on medical examination.
19. That there was some trouble between the two parties with regard to possession of some pre- empted land is evident from the statement of the appellant Ghulam Sarwar made under section 342, Cr. P. C. On the evidence on record, the Courts blow also accepted the prosecution case that on the day preceding the date of occurrence there had been an altercation between Akram, deceased and the women-folk of the family Khushi Muhammad. Having regard to the direct evidence of the four eye-witnesses two of whom were themselves injured and the evidence with regard to motive, the Courts below rightly found the appellants to be guilty of the offences for which they were convicted and punished.
20. The learned counsel for the appellants submitted that the occurrence did not take place near the dera of Khushi Muhammad as alleged by the prosecution. The reason given for this is that there was another shorter route between village Shadiwal and the deceased's dera and, as such, the deceased was not required to follow the route passing by the side of Khushi Muhammad's dera.
21. This contention was also made before the Courts below, but it was found to be without substance.
22. The S. H. O. (P. W. 20) stated that he inspected the spot, collected blood-stained earth there from and sent the same for chemical examination. It appears from the reports of the chemical examiner and the serologist that the blood-stained earth collected from the place of occurrence was found on analysis to be stained with human blood. This circumstance amply shows that the occurrence took place at the spot near Khushi Muhammad's dera.
23. It was next contended by the learned counsel that there was delay in lodging the F. I. R. And that the inclusion of the names of some innocent persons could not be ruled out. This contention also did not find favour with the Courts below. Both Akram, deceased and his father Ghulam Rasul had sustained grievous injuries and, as such, they were desparately in need of proper medical aid true t there a dispensary in the village Shadiwal, but this village dispensary was hardly likely to be equipped with all facilities for dealing with such serious cases of injuries. It was, therefore, only natural on the part of the complainant-party to take the injured persons to the Gujrat Hospital for proper medical aid. After obtaining a certificate from the Medical Officer as to the injuries, Aslam went to their own Police Station at Kunjah and lodged the F, I. R. The same day at 4 p. m. Thus, the delay that was involved in lodging the F. I. R. Was sufficiently explained.
24. It is also true that there was a police-post at village Shadiwal, but the complainant-party made no mistake by not lodging an F. I. R. In the village police-post. They were in a hurry to take the injured persons to the Gujrat Hospital for proper medical aid. Moreover, they were in need of a medical certificate for the registration of a cognizable case.
25. It appears from the evidence of the Medical Officer, Shadiwal dispensary that Khushi Muhammad and his two sons Ashraf and Akbar went to that dispensary of their own accord at 12-30 p. m. On the date of occurrence, and received first aid. According to this medical officer, all the injuries on their persons were simple. The prosecution witnesses Nos. 5, 6 and 7 stated that in their attempt to rescue Akram, deceased and inured P. W. Ghulam Rasul, they inflicted stick blows on some of the accused persons. Thus, it is pretty clear how Khushi Muhammad and his sons sustained some simple injuries.
26. The learned counsel for the appellants submitted that the complainant-party were the aggressors and that they having first launched the attack, there was a free fight thereafter. Both the learned trial Judge and the learned Judge of the High Court refused to believe that the complainant-party were the aggressors and having regard to the number and nature of the injuries sustained by the en of the complainant-party including the deceased and also having regard to the few simple injuries found on the person of some of the accused, we are definitely of the view that the accused-party were the aggressors and that they launched the attack firstly on Akram, deceased and then on P. W. Ghulam Rasul and that thereafter both the parties exchanged stick blows. This appreciation of the Courts below as regards the occurrence is justified by the facts and the attending circumstances of the case.
27. The. Four appellants were not mere silent members of the unlawful, assembly. They actively participated in the crimes. Of them, the appellants Ghulam Sarwar, Ashraf and Allah Ditta inflicted blows on the head of Akram, deceased and the appellant Khalil gave a kehi blow to P. W. Ghulam Rasul with its blunt side. Thus all of them were rightly convicted and sentenced. We, accordingly, dismiss both the appeals.