MUNAWWAR ELAHEE RANA, J.-Akbar aged 30 years, his brother Asghar alias Kakki aged 22 years, their brother-in-law Sakhi aged 40 years and their father Ghulam Muhammad aged 80 years were tried by the learned Additional Sessions Judge, Kasur, for an offence under section 302/34, P. P. C.
For the murder of Ali Sher aged 35 years. Akbar, Asghar and Sakhi were convicted on the said charge and sentenced to death with fine of Rs. 5,000.00 each and in default to undergo R. I. For two years each. Ghulam Muhammad was sentenced to imprisonment for life and fine amounting to Rs.
5.000.00, and in default to undergo R. I. For two years. Out of the amount of fine, when realised, a, sum of Rs. 10,000.00 was ordered to be paid as compensation to the heirs of the deceased. All the four convicts have come up in appeal against their conviction and sentences. The matter has also been referred to us under section 374, Cr. P. C. For confirmation of the death sentences awarded to Akbar, Asghar and Sakhi. We propose to dispose of the appeal as well as the reference by this judgment.
2. The prosecution version about the murder as stated in the F. I. R. (Exh. P. J.) lodged by Qutub-ud- Din P. W. 4, a nephew of the deceased, is that on 11September. 1976 at about deegar time, the complainant who had 3 or 4 days earlier lost his hen, came across Achhi Mahtam and enquired from him about the hen, who daringly admitted to have stolen it and eaten it up, and also threw a challenge to do whatever he liked. The complainant slapped Achhi in his face in return, but the people present there intervened and hushed up the matter. Achhi threatened the complainant of dire consequences and went away. In the evening at about 5-30 p. m. Akbar, Kakki (Asghar), Sakhi and Ghulam Muhammad accused armed with dangs came to the spot and proclaimed their presence in the street whereupon Ali Sher deceased, the uncle of the complainant, who was thenth present in the house came out and started requesting the accused to forgive, but Kakki suddenly made an attack and hit the complainant with a dang at his head. Ali Sher deceased who had come in between to stop them also received dang on his head, with the result that he fell down.
The accused continued causing injuries to the deceased while he had fallen down. Ali Sher succumbed to his injuries and expired soon after. The occurrence was witnessed by Umar Khan; (P.
W. 7) the father and also by Muhammad Anwar (P. W. 3).
3. After recording the F. I. R. Iftikhar Ahmad Panoon S. H. O, Chunian (P. W. 9) reached the place of occurrence and prepared the inquest report (Exh. P. O.) of the deceased. He handed over the body of the deceased to Bashir Ahmad F. C. (P. W. 6) for post-mortem examination. He inspected the spot the next day and prepared a rough site plan (Exh. P. H.-1) and also took the blood-stained earth into possession vide recovery memo Exh. P. H. And sealed it into a parcel. The Foot Constable produced the last worn clothes P. 1 to P. 3 and recovery memo Exh. P. A. Was prepared. The investigating officer also prepared the injury statement (Exh. P. L.-1) of the complainant and directed him to be medically examined. Akbar, Sakhi and Ghulam Muhammad were arrested on 13September, 1976, while Asghar alias Kakki was arrested on 20September, 1976. Bloodstained sota P. 4 seas produced by Muhammad Akbar appellant vide recovery memo Exh. P. B. His blood- stained clothes P. 9 and P. 10 were removed from his body and taken into possession vide memo Exh. P. C. Another blood-stained sota P. 5 was produced by Sakhi appellant and taken into possession vide memo. Exh. P. C. Ghulam Muhammad appellant produced sota P. 6 which was taken into possession vide memo Exh. P. D. Sota P.; was recovered at the instance of Asghar vide memo Exh. P. E. Sakhi appellant produced his blood-stained banian P. 8 vide recovery memo Exh. P.
F. The investigating officer prepared the injury statement Exh. P. M./1 of Muhammad Akbar appellant and Exh. P. N./1 of Sakhi appellant and sent their for medical examination.
4. On 12th September, 1976 Doctor Muhammad Ashraf, Medical officer, Civil Hospital. Chunian (P. W.
5), conducted the autopsy on the dead body of Ali Sher and found the following injuries on it:-
(1) A lacerated wound 1--, x --` x bone deep anterior part of wall of skull to the left of skull to the left of mid line.
(2) Swelling 3--- x 2--- right temple region and above the ear.,
(3) Contusion left temple region measuring 2' x 2".
(4) Both left eye libs were contused.
(5) Abrasion 1" x 1" behind left ear on Mastoid process.
(6) Abrasion 1--" x 1--" in front of left shoulder.
(7) Bleeding from left ear.
(8) Contusion 3--- x 1" left side of chest lower part.
(9) Abrasion 1--" x --" in front of chest right side.
(10) Abrasion 3" x 1/10" back of chest left side.
(11) Abrasion 1/3" x --" back of right fore arm.
5. Frontal bone and both temporal bones were fractured. In the opinion of the doctor death was caused on shock and compression of the brain. Injury No. 4 was the result of injury No. 1. Injury No. 1 alone was sufficient in the ordinary course of nature to cause death.
6. On the same day the same doctor examined Qutab-ud-Din complainant who complained of injury over his head, but no such injury was found on his person. Vide the report of the doctor Exh. P.
L.
7. Muhammad Akbar appellant was examined on 13September, 1976. According to the report Exh.
P. M. He had on his body the following injuries:-
(1) Abrasion 1--" x 1--" left side of head, upper part.
(2) Abrasion --" x --" behind the right ear. Both the injuries were simple in nature caused by blunt weapon.th th th
8. Sakhi appellant was also examined on 13th September, 1976 and following injuries were found on his person:-
(1) Swelling 3" x 2--- on the left right foot near the toes.
(2) Lacerated wound 1--" x 1/6" x skin deep left side of head.
The injuries were kept under observation but according to the doctor's report Exh. P. N. They were found simple, caused by blunt weapon.
9. At the trial two of the appellants namely Asghar and Ghulam Muhammad categorically denied their participation an the occurrence. Sakhi pleaded innocence but stated that Ali Sher deceased, Shafi Teli, lima and Kheroo were quarrelling with each other over a dispute relating to the suspected illicit relations between Ali Sher deceased and Mst. Sheedo, were of Shafi Teli He and Akbar his brother-in-law intervened on which Ali Sher assaulted both of them. The same is the statement of Muhammad Akbar appellant. The recovery is however denied by all the appellants.
10. After examining the evidence on record, the learned Additional Sessions Judge rejected the defence version. He observed that the prosecution attempted to suppress the injuries caused to Muhammad Akbar and Sakhi appellants. He however found corroboration of the ocular account in the motive and recoveries and held that the appellants went in front of the house of Umar Khan to take revenge of the earlier incident and as such they were aggressors. He, therefore, convicted and sentenced them as mentioned above.
11. Qutub-ud-Din complainant, Umer" Khan and Muhammad Anwar P. Ws. Supported the prosecution version. Qutub-ud-Din is the nephew of the deceased. Umar Din is the father of Qutub- ud-Din and the real brother of the deceased. In this way these eye-witnesses are closely related to the deceased. Muhammad Anwar P. W. Is resident of the village, but had (by chance) seen the occurrence while he was on his way back to his village from his dera. Akbar and Sakhi appellants sustained injuries during the occurrence which were suppressed by the aforementioned eye- witnesses. They stated that Qutab-ud-Din complainant also suffered injury/injuries at the hands of the accused but this version is not supported by the medical evidence. That being the position their evidence has to be scrutinized with caution and will be accepted only if corroborated from unimpeachable source.
12. Asghar alias Kakki and Ghulam Muhammad appellants denied their participation in the occurrence. Their co-accused also stated that they were not present at the spot. In the F. I. R. The complainant stated that Asghar appellant gave a sota blow on his head but no such injury was found on his person. The prosecution has relied on the recovery of sofas from them as a corroborative evidence. The sotas were not stained with blood. Such type of sticks are generally found with every villager. This recovery, therefore, does not lend any support to the ocular evidence.
It is to be noted that there is a general tendency to rope in as many persons of the opposite faction as possible when an occurrence of this type takes place. We are, therefore, of the view that it would be highly unsafe to maintain the conviction of the aforesaid appellants on the uncorroborated testimony of the eye-witnesses. We therefore, allow their appeal, set aside their conviction and sentence and acquit them of the charge by giving them the benefit of doubt. They may be released forth--with if not needed in any other case.
13. The case of Akbar and Sakhi appellants, however, stands on a different footing. They have admitted to have taken part in the occurrence Apart from this admission the ocular version regarding their participation in the occurrence finds corroboration from the recovery of the blood- stained dangs at their instance and that of blood-stained clothes from them. These articles were found by the Serologist to be stained with human blood These appellants, however, came up with the version that on the day of occurrence they saw Ali Sher deceased, Shafi Teli, lima and Kheroo armed with dangs quarrelling with each other upon which they (the appellants) intervened and suffered injuries at the hand of the deceased. According to them the deceased was injured by Shafi Ilma and Kheroo. There is nothing on record to support this version. If Shafi, Ilma and Kheroo had been the real assailants, there was no earthly reason for the complainant to spare them and substitute the appellants, The deceased had blunt weapon injuries on his person and the occurrence took place in front of the house of the deceased. These circumstances lend support to the view that these appellants came to the spot armed with blunt weapons in order to take revenge of the earlier incident. We are, therefore, satisfied that it were they who had caused injuries to the deceased.
14. The deceased had eleven injuries on his person out of which injury No. 1 resulted in the fracture of frontal bone and both temporal bones. The rest of the injuries were in the nature of minor contusion and abrasions. After going through the record we are of the view that in the circumstances of the case the intention to kill cannot be inferred. These appellants can however safely be burdened with the knowledge that a terrific blow on the vital part of the body like the head was likely to cause death. We are, therefore, of the view that the offence committed by Akbar and Sakhi appellants falls within the ambit of section 304, Part II of the P. P. C. Accordingly we alter their conviction from sec--tion 302/34, P. P. C. To section 304, Part II/34, P. P. C. They were arrested on 13th September, 1976 and the period of their detention before and after the trial comes to about 4 1/2 years. In the circumstances of the case we feel that the sentence already undergone by them would meet the ends of justice. We order accordingly. In addition to this each on of the appellants is required to pay Rs. 5,000.00 as compensation to the legal heirs of the deceased. The Collector concerned is hereby directed to take necessary steps for realisation of the aforesaid amount. The appeal stands disposed of accordingly.