KHALILUR REHMAN KHAN, J.---The appellants, Ghulam Muhammad, Murad, Sultan, Shian alongwith their do-accused Zafar, Afzal and SaeeD Muhammad were sent up for trial under section 302/307/148/149, P. P. C. Zafar accused died before commencement of the trial and as such the case against him abated. As Against Afzal and SaeeD Muhammad, it was reported that they had gone out of country and proceedings under section 512, Cr. P. C. Were initiated. The learned Additional Sessions Judge, Gujrat tried the above-named appellants and vide judgment dated 14th January, 1979 convicted Ghulam Muhammad appellant under section 302/149, P. P. C. And sentenced him to death and to pay a fine of Rs. 2,000 or, in default, to suffer one year's R. I. Murad, Shian and Sultan were convicted under section 302/149, P. P. C. And sentenced to life imprisonment and a fine of Rs. 2,000 each, or in default, to undergo further one year's R. I. Murad, Ghulam Muhammad, Shian and Sultan appellants were also convicted under section 307/149, P. P. C. And sentenced to undergo for a period of four years' R. I. Each and a fine of Rs. 1,000 ; or, in default, to suffer further imprisonment for a period of 6 months. They were also convicted and sentenced to undergo one year's R. I. Each under sections 148, 149, P. P. C. All these sentences were to run concurrently. It was further directed that the amount of fine imposed under section 302/149, P. P. C.
If recovered, shall be paid to the heirs of Muhammad Khan deceased and the amount of fine imposed under section 307/149, P. P. C. If recovered, shall be paid to Muhammad Sharif complainant.
2. Murad appellant died on 12th September, 1981, the appeal to his extent has abated.
3. This judgment will dispose of the appeal of the remaining appel--lants and the reference made by the learned Additional Sessions Judge for confirmation of the death sentence awarded to Ghulam Muhammad.
4. The prosecution case, as contained in F. I. R. Exh. P. N. Dated 18th April, 1973 recorded on 7.00 p. m.
At the instance of Muhammad Sharif complainant (P. W. 14), was that on the above day at Mari Deegarwela, he alongwith his brother Muhammad Khan deceased was coming from the fields after cutting the fodder which was being carried by his said brother. When they reached in the land of Ch. Mehdi, Zafar, Ghulam Muhammad and Afzal accused, each armed with rifle and SaeeD, Shian, Murad and Sultan each armed with hatchet emerged. The com--plainant was following Muhammad Khan deceased at a distance of 10/15 Karams. Zafar accused fired at Muhammad Khan, which hit his chest on the front. Muhammad Khan turned back and he was fired at by Ghulam Muhammad at his back in the middle. Muhammad Khan fell down. When the complainant ran back, SaeeD Muhammad gave a hatchet blow on his right ear while Shian gave a hatchet blow on the back of his left) hand, whereupon he fell down. Thereafter Sultan gave a hatchet blow, which hit his right arm and then Shian and Murad gave him hatchet blows which landed at his head and the hack of the neck. It was also mentioned in the F. I. R. That Rafiq Ahmad, Rehmat Khan and Fazal Dad P. Ws. Also saw the occurrence. Muhammad Khan died at the spot and the accused ran away alongwith their respective weapons.
5. The motive of the occurrence, as stated in the F. I. R. Was that about 10 years before Muhammad Khan deceased had abducted Mst. Begum wife of Shian appellant, but although she was returned, the accused party still harboured grudge. Said Mst. Begum was the daughter of Murad appellant and sister of Ghulam Muha mad, Sultan, Afzal and Zafar, while SaeeD Muhammad was nephew of Shian appellant. It is also on record that Mst. Begum was murdered by accused persons 4/5 years after she was returned by the complainant party.
6. After recording the F. I. R., Sher Afzal, S. H. O. (P. W. 12) sent Muhammad Sharit complainant, after preparing his injury statement Exh. P. O. To the Medical Officer, Civil Hospital, Dinga where he was examined by Dr. Muhammad Ramzan Parvez (P. W. 11) at 7.45 p. m. Sher Afzal, S. H. O. Went to the spot and took into possession the dead body of Muhammad Khan, deceased. He prepared injury statement Exh. P. Q. And Inquest Report Exh. P. R. In respect of the deceased and sent the dead body to Civil Hospital, Kharian, for post-mortem examination on 18th April, 1973 at 10.00 p. -m. Sher Afzal, S. H. O. Also took into possession blood-stainted earth vide Memo. Exh, P.D. From the place where the dead body of the deceased, was lying. He took into possession vide Memo. Exh. P. E. Blood- stained earth also from the place where Muhammad Sharif complainant, was injured. The crime empty P. 8/1 was also taken into possession by him from the place of occurrence vide Memo. Exh. P.
F. He also took into possession bundle of fodder P. 9 from the place of occurrence vide Memo. Exh.
P.G. The site plan Exh. P. C. Was got prepared from Muhammad Ashraf Patwari (P. W. 7) of the place of occurrence. The last worn clothes of the deceased as well as a bottle containing lead of the bullet were handed over to the S. H. O. By Muhammad Aslam Constable (P. W. 2) to whom the said articles were delivered by Dr. Ghayur Alam, Medical Officer, who had conducted the post-mortem examination and the same were taken into possession vide Memo. Exh. P. A. As regards recoveries of the weapons of crime from the appellants, it is on record that Shian appellant led to the recovery of hatchet P. 10 from his house which was taken into possession vide Memo. Exh. P. J., and the recovery of the hatchet from the house of Murad on his pointing out was effected through Memo.
Exh. P. L. Likewise Sultan appellant, while in police custody, led to the recovery of hatchet taken into possession vide Memo. Exh. P. K. The aforesaid hatchets alleged to have been recovered were admittedly not stained with blood. Ghulam Muhammad appellant, under police custody, led to the recovery of rifle P. 13 from his house which was taken into possession but the Memo is not available because the judicial as well as police files were burnt in the office of Illaqa Magistrate ; Allah Ditta (P. W. 10) is stated to have attested the Memos of recovery. The recovery of rifle was also effected from Afzal accused which was witnessed by Muhammad Latif (P. W. 8) and Muhammad Sharif (P.
W. 14). It is, pertinent to mention at this stage that recovery of the alleged weapons of offence, i.e. Hatchets and rifles are of no avail to the prosecution as the hatchets were admittedly not stained with blood and no opinion of the Arms Expert was produced connecting the crime empty P. 8/1 with any of the rifles allegedly recovered.
7. The prosecution at trial produced only one eye-witness, namely, Muhammad Sharif, complainant (P. W. 14). As Fazal, out of the eye--witnesses named in the F. I. R., was given up having been won over and the other named eye-witnesses were given up as they had died by then, the prosecution in the circumstances relied upon the statement of Muhammad Sharif (P. W. 14), and the medical evidence contained in the statement of Dr. Muhammad Ramzan Pervaiz (P. W. 11), the post-mortem report Exh. P. S. Proved through the evidence of Muhammad Akram, Dispenser (P. W. 13), the evidence of recovery of blood-stained earth from the place of occurrence and the motive. The appellants in their statements denied their participation in the occurrence and recovery of the weapons of offence attributed to them and deposed that they had been involved falsely in the case due to enmity.
8.We have heard the learned counsel for the parties and have also gone through the record carefully with their assistance. Learned counsel for the-appellants argued that the uncorroborated testimony of the solitary eye-witness Muhammad Sharif (P. W. 14) cannot be made the basis of con--viction as this testimony stands contradicted by the medical evidence. Learned counsel pointed out that it was mentioned in post-mortem report Exh. P. S. That one pellet was recovered from the body of the deceased. This would show that the assailants used the gun and not rifle and as such the version of the eye-witness that the assailants fired with rifles stood belied. It was further contended that admittedly the crime empty was sent to the Ballistic Expert, but his report was not produced in Court. These circumstances, according to the learned counsel, were sufficient to belie the version of the solitary eye-witness whose testimony, even otherwise, does not inspire confidence. It was lastly contended that in Column No. 22 of the inquest Report, recovery of the crime empty from near the dead body was not material and as such, in any case, the said crime cannot be used as an incriminatory circumstance. In view of the fact that no mention was made of the recovery of clime empty in the Inquest Report, the report of Ballistic Expert, even if produced so as to connect the crime empty with the rifle, would not have been relied upon ordinarily. The submission that as pellet was recovered from the dead body, the ocular version stands contradicted is without any merit. In order to find out as to what was recovered by the Doctor from the dead body ; whether a pellet or lead of a bullet, we examined the bottle forwarded by the Doctor to police vide Memo. Exh. P. A. The sealed bottle was found to contain a lead piece and the said piece, under no circumstance, can be called a "pellet". We are, therefore, constrained to observe that the Doctor was not right in making a note in the Post-Mortem Report Exh. P. S. That a pellet was recovered from the dead body. The opinion of the Doctor on this question, even otherwise, carries no weight as he is not a Ballistic Expert. This being the position and considering the nature of injuries found on the dead body, we are of the considered view that the injuries were apparently caused by shots fired from rifle. The testimony of the injured eye-witnesses, namely, Muhammad Sharif (P. W.), as such does not stand contradicted by the medical evidence. Rather his testimony stands corroborated by the medical evidence contained in Exh. P. S. As well as by the statement of Dr. Muhammad Ramzan Parvez (P. W. 11). We have, even otherwise considered the statement of Muhammad Sharif (P. W. 14), the injured eye--witness, and we find that the same inspires confidence. The defence in the A cross-examination was also not able to demolish the statement of this eye--witness who received 7 incised wounds, out of which, two were grievous. In the circumstances, the presence of the eye-witness, at the time of occur--rence, and receiving of his injuries, during the occurrence, cannot disputed. In the circumstances it will also be idle to suggest that, in fact, the appellants were substituted for the actual assailants. There can also be no question of not having identified the assailants as the occurrence took place at Mari Deegerwela at about 5.00 o'clock in the evening. In the circumstances the testimony of the eye-witness can safely be relied upon as against the present appellants.
9. However, the question to be determined is the offence that the appellants have been proved to have committed on the basis of the facts and circumstances established on record through the aforesaid prosecution evidence. Ghulam Muhammad appellant and Zafar tired at the deceased.
The case against Zafar due to his death has abated. The other appellants admittedly did not cause any injury to the deceased. As such Ghulam Muhammad, appellant was responsible for intentionally causing the death of Muhammad Khan deceased. He can only, therefore, be convicted under section 302, P. P. C. The conviction and sentence of Shian and Sultan appellants under section 302/149, P: P. C. Is, therefore, set aside. The question of sentence to be awarded to Ghulam Muhammad has ls received our anxious consideration. We and that imprisonment for litc will meet the ends of justice in this case as it was the prosecution case itself that the occurrence took place because the accused party felt aggrieved on account of abduction of Mst. Begum by Muhammad Khan deceased and as the death, in the opinion of the Doctor,was due to shock and haemor--rhage caused by Ghulam Muhammad as well as Zafar accused. The sentence of fine of Rs. 2,000 is, however, maintained. Ghulam Muhammad will, however, be given benefit of the period he remained under detention in view of the provisions of section 382-B, Cr. P. C. The conviction and sentence of Shian and Sultan appellants under section 307, P. P. C., is also set aside and they are convicted under section 326, P. P. C. In view of nature of the injuries and the site of injuries caused by them. They are sentenced to the term of imprisonment already undergone. They shall, therefore, be released forthwith, if not required in any other case. The sentence of fine imposed upon them is, however, maintained. The con--viction and sentence awarded to the appellants under section 148/149., P. P. C., is also set aside. The death sentence awarded to Ghulam Muhammad appellant is not confirmed. The fine imposed on Ghulam Muhammad, on recovery, shall be paid to the heirs of the deceased and the fine, if recovered, from Shian and Sultan appellants, shall be paid to Muhammad Suarif complainant. The Collector shall take steps to recover the amount of fine. The appeal is, therefore, dismissed except to the extent mentioned above. We disposed of this appeal vide our short order dated 19th January, 1982 and the above are the reasons for our aforesaid order.
Death sentence not confirmed.