FAKHARUDDIN G. EBRAHIM, J.-The five 'appellants, Azmat, Sher Afzal, Khan Afaal, Shaukat all sons of Amir Hyder and their father Amir Hyder were tried by the learned Sessions Judge, Rawalpindi for forming an unlawful assembly and in furtherance of their common object, committed the murder of Muhammad Ashraf and murderous assault on Mansab Khan P. W. 16 and Mehboob Khan P. W. 17.
The learned Sessions Judge vide his judgment dated 13-11-1976 convicted all the appellants under sections 302/307/ 149 and 148, P. P. C. The appellant Azmat was sentenced to death and a fine of Rs.3,000 for causing death of Muhammad Ashraf. He was sentenced to five years R. I. And a fine of Rs.1,000 under section 307/149, P. P. C. And also awarded six months R. I. Under section 148, P. P. C.
The rest the four appellants were sentenced to life imprisonment and a fine of Rs.3,000 or in default to undergo R. I. For a period of one year each under section 302/149, P. P. C. They were, under section 307/149, P. P. C., sentenced to five years R.
1. And fine of Rs.1,000 or in default to undergo R. I.
For a period of six months each. They were also sentenced to six months R. I. Under section 148, P. P.
C. All the sentences were ordered to run concurrently. Out of the fine, on realization, a sum of Rs.
10,000 was to be paid to the heirs of the deceased as compensation and Rs. 5,000 to be paid, each to Mansab Khan P. W. 16 and Mehboob Khan P. W. 17.
2. The case then came up before the High Court for confirmation of death sentence awarded to appellant Azmat and also by way of appeal by all the five appellants. A criminal revision application filed by Mehboob Khan p. W. 17 for enhancement of sentence of life imprisonment awarded to the appellants other than appellant Azmat, was also heard and disposed of by the High Court vide impugned judgment dated 30-10-1978.
3. The High Court maintained the convictions of the appellants and so also the sentences awarded except for the appellant Azmat, whose sentence of death was converted to life imprisonment.
4. In so far as appellants other than Azmat are concerned, the High Court, like the learned Sessions Judge found that the ocular evidence of three eye-witnesses Muhammad Hayat P. W. 15, Mansab Khan P. W. 16 and Mehboob Khan P. W. 17 notwithstanding their relationship with the deceased was hardly open to any doubt. They were, according to the High Court, natural witnesses of the occurrence and their testimony against the appellants was clear, consistent and convincing.
Additionally, the High Court relied on the evidence of recoveries. From the appellant Amir Hyder who was arrested on 29-12-1974 was recovered an unlicensed 12 bore gun P.
15. The appellant Shaukat who was also arrested on 29-12-1974 and from his person was recovered an unlicensed Revolver P. 17 containing two live cartridges. Appellant Afza1 Khan who was also arrested on the same day was found in possession of an unlicensed pistol. Appellant Sher Afzal was arrested on 31- 12-1974 and at his pointation was recovered an unlicensed '12 bore pistol. The crime empties namely a '12 bore empty cartridge P. 12 from near the dead body of the deceased Muhammad Ashraf, four empties of '32 bore P. 22/1 to 22/4 and a '12 bore empty cartridge P. 23 from near the boundary wall of the have of the appellants, the place of the occurrence, were found matched with the fire-arms recovered from the appellants other than appellant Azmat. As regards the appellant Azmat, the High Court observed as follows : "However, the fact that has engaged our attention is whether or not we ought to upheld the sentence of death awarded to Azmat appellant for having caused injuries to Muhammad Ashraf deceased with a Chhuri. As mentioned earlier this injury is not ascribed to any of the appellants in the F. I. R. The Chhuri blows could have been caused by any of the appellant and not necessarily by Azmat appellant. We are not inclined to agree with learned trial Court that Azmat appellant from whom Chhuri P. 25 was recovered should be held responsible for inflicting Chhuri blows and thus sentenced to death.
In this view of the matter, we, by way of abundant caution, convert the sentence of death awarded to Azmat appellant to that of life imprisonment. In the result, with the aforesaid modification the appeal filed by all the appellants is dismissed. Sentences of fine are maintained."
5. Mr. Zafar Mahmood the learned senior counsel appearing for the appellants contended that in so far as the appellants other than Azmat are concerned what has been attributed to them are injuries caused to the deceased by '12 bore pistols as well as revolver but the medical evidence of the injuries caused on the person of the deceased as well as his eye--witnesses entirely exclude the injuries caused by pallets in as much as the width of no injury was less than ----- and a pallet injury will necessarily cause injury not exceeding 1/8' in width. The learned counsel however, in support of his contention did not invite our attention to any authority of the Superior Courts or any learned treatise on the subject that pallet injuries will result in wounds of not more than 1/8' width.
Additionally, the argument cannot be sustained for the reason that according to Dr. Abdul Jabbar P. W. 1 multiple opaque foreign bodies (pellets) were seen in the body of P. W. Mehboob Khan and there was not even a suggestion put to the doctor that the injuries were not caused by pellets.
6. As regards the appellant Azmat, Mr. Zafar Mahmood, the learned counsel invited our attention to the fact that the complainant Mehboob Khan did not in the F. I. R. Attribute to Azmat either the possession of a Chhuri or its use by him in the occurrence. This omission, which cannot be easily overlooked, was sought to be explained away in the witness's deposition by reference to an alleged black out of the witness for a few minutes, caused by a stone injury on his head during the course of the occurrence. The witness has omitted his black out in the F. I. R. And in his statement under section 164, Criminal Procedure Code. The other eye--witness P. W. Muhammad Hayat did not confirm either the stone injury on the head of P. W. Mehboob Khan nor his black out for a few minutes. We have also noticed that P. W. Mehboob Khan attributed the use to Chhuri by the appellant Azmat on the basis of information said to have been received by him from P. W. Mansab Khan three days after the occurrence. This was not again the case of the witness in his 164 statement. P. W. Mansab Khan also did not say in his deposition that any such information was given by him to P. W. Mehboob Khan. It is difficult to believe that though the injured P. Ws. Mebboob Khan and Mansab Khan were carried to the police station at a distance of a mile from the place of occurrence, they did not talk about the knifing of the deceased by Azmat which occasion allegedly came, according to P. W. Mehboob Khan, three or four days after the occurrence. The corroborative evidence against Azmat in the shape o recovery of a blood stained Chhuri is also of no assistance to the prosecution, for the Chhuri was recovered from a thorough-fare, not lying buried but allegedly concealed under a bush. Furthermore it was not proved that the Chhuri was stained with human blood for the blood on the Chhuri was found to be disintegrated and its origin could not be determined by the Seriologist. In this state of the evidence the High Court took the view that the churl blows could have been caused by any of the appellants and not necessarily by the appellant Azmat. The eye-witnesses had alleged use of fire arm by Azam but no such incriminating recovery was made from him. The number of crime empties recovered will also reasonably exclude participation by as many as five persons. If, ass was found by the High Court that churi blows may have been inflicted by any of the appellants other than Azmat, the possibility that the complainant party may have falsely implicated Azmat along with his three brothers as well as their father, Amir Hyder all the male members of one family cannot be ruled out and more so in view of) the tendency in our part of the world to rope in as many persons as possible in the opposite camp in the commission of a crime. The circumstance mentioned above create doubt as to the very presence of appellant Azma at the place of occurrence.
7. We therefore set aside conviction of appellant Azmat and order that he will be released forthwith unless required to be detained in an other case. In so far as other appellants are concerned, we see no reason to interfere and this appeal by them will stand dismissed.