MAZHARUL HAQ, J. -Mian Khan (32) Riaz (22) sons of Jalal Din, Jalal (50) along with Riaz, Bahadar, Lal, Phallu were tried for the murder of Asghar by the Sessions Judge, Gujrat. On 29th November, 1977 Jalal, Riaz and Mian Khan, were convicted under section 302, P. P. C. And sen--tenced to life imprisonment. Each was fined Rs. 500 or in default to undergo one year R. I. Further. The remaining accused were acquitted 'of the charge. The appeal of the convicts and the connected revision of Lal Khan, petitioner (complainant) against the acquittal and for the enhan--cement of the sentences of the convicts, will be disposed of by this judgment. State had also filed an appeal against the acquittal which was dismissed in limeline. This partly disposed of the revision petition of Lal Khan. Notices were however, issued to the three convicts as to why their sentences should not be enhanced.
2. Briefly, the facts of the case are that Jalal and Raja are real brothers. Bahadar and Jalal are cousions. Riaz and Mian Khan are sons of Raja. Sister of Lal accused was married to Mian Khan appellant. Another sister of Lal accused was married to Phallu (acquitted accused). Riaz appellant's mother is the sister of Lal accused's father. Phallu is the brother of the wife of Jalal appellant.
3. About four years before the occurrence in this case Phallu son of Mehra was murdered. Lal informant, his brother Muhammad Asghar (deceased) and four others were accused of the murder. Since about a year and nine months before the occurrence in this case the assailant of said Phallu were acquitted. The accused in this case in order to avenge the murder of Phallu attacked Asghar. According to the pro--secution at digerwela on 23rd June, 1974 Asghar was proceeding in a lane, as he reached the house of Lal Khan son of Jhanda the seven accused emerged out of the house of Lal. Riaz was armed with pistol, Mian Khan with a hatchet and the remaining had sofas with them. After raising lalkara at Asghar that the would not be spared, Riaz fired pistol shot hitting him on the left ear. Asghar fell down. Mian Khan gave a hatchet blow under his chin. Jalal inflicted a sofa blow on his right temple. Thereafter, all accused except Riaz inflicted more injuries to him. During the attack Mian Khan also used the blunt side of the hatchet. Besides P.
W. 8, Lal informant, the occurrence was witnessed by P. Ws. Faqir Muhammad, Muhammad Akhtar and Lal Khan son of Taja. Asghar died at the spot. P. W. 8, Lal went to Police Station Kharian situated at a distance of ten miles from the occurrence. He made the F. I. R. (Exh. P. A.) at 8 p.m. The same day to P. W. 10 Muhammad Hanif. A. S. I. After registering the case the A. S. I. Went to the place of occurrence. He prepared the necessary documents and sent the dead---body for its post-mortem examination. On inspection of the spot on 24th June, 1976 the A. S. I. Collected blood-stained earth from there. He also collected a lead bullet P. 9, it was sealed into a parcel vide Memo. P. K. Of the witnesses.
4. P. W. 9, Dr. Ghayyur Alam, Medical Officer, Civil Hospital, Kharian, held the autopsy over the dead body of Asghar and observed the following injuries :-
(1) Incised wound 2 ----- x ----- x underneath bone fractured on right side on chin.
(2) Swelling 3" x 3" on right side of head 1" above right ear.
(3) Lacerated wound 2" x ----- x through and through charring round the wound edges inverted on the lobule of right ear.
(4) Contused wound 1" x----- bone deep on right side of forehead.
(5) Contused wound ----- x 1/8---x skin deep on right side of face" lateral to right eye.
(6) Contused area 6--- x 6 ----- on right side of face.
(7) Contused area 1" x 1" on front of right shoulder.
(8) Contused area 4" x 1" on front of right side of chest just about right nipple.
(9) Contusion mark 5" x 2" on front of chest 11" below right nipple.
(10) Contusion mark 7 ----- x 1" on interior wall of abdomen,
(11) Contused area 7" x 4" on front of right inguinal area.
(12) Contusion mark 1" x 21" on medial side of left thigh.
(13) Contusion mark 4" x 1" on back side of right pelvis.
(14) Contusion mark 6" x ----- on back of left side of chest 5" below the left shoulder.
(15) Contusion mark 7" x 1" on back of left shoulder.
(16) Contusion mark 4" x 1" on back of left scapula.
(17) Contusion mark 2" x 1 ----- on back of right scapula.
(18) Contusion mark ----- x ----- on back of right side of chest 8" below injury No. 17.
(19) Abraded area 1" x ----- on left knee joint.
Rt. Temporal bone, sphonoid bone fractured. Extra dural heamorr--hage. Death in his opinion was due to shock and heamorrhage as a result of all injuries. Injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature.
5. After the post-mortem examination P. W.
2. Lal Khan constable who had escorted the dead body to the martuary brought back last worn clothes of the deceased i.e. Shirt P. 10 and Saluka P. 11 which the A. S. I. Took into possession through Memo. P. L. We have mentioned this fact because the learned counsel for the appellants had raised an argu--ment that the deceased was naked at the time of the occurrence. We may also add that the doctor did not find the body naked.
6. On 25th June, 1974 the seven accused were produced before the A. S. I. By one Akbar. They were arrested. The same day Phallu accused got recovered sofa P. 2 from his house. Its memo of recovery P. C. Was prepared. From his house Raja got recovered the stick P.
3. It was taken into possession through Memo. P. D. Jalal in custody led to the recovery of the sofa P. 4 from his house.
Its recovery memo is P. E. Mian Khan got recovered hatchet P. 5 from his house. It was blood- stained, therefore, it was made into a sealed parcel and taken into possession vide memo. P. F.
Bahadar Khan got recovered from his house sofa P.
8. Similarly Lal got recovered sots P. 1 from his house. These were taken into possession vide Memos. P. H. And P. B. Respec--tively. Revolver P. 6 belonged to Riaz accused's brother Mehdi Khan who had a licence for it. Riaz got it recovered from the house where it was concealed within a box. It was taken into possession vide memo. P. G.
7. After completing the investigation, the accused were sent up for trial. They all denied guilt and ascribed the case to enmity with the eye-witnesses. They admitted their relationship inter se and also explained the various earlier incidents which took place between them and the explained party. It thus followed that the parties had old family feud linked with murders. They denied the recoveries made from them and led no evidence in their defence.
8. Trial Court accepted the evidence of the three eye-witnesses i.e. P. W. Lal Khan (informant) P. W.
9. Lal son of Taja and P. W. 12 Muhammad Akhtar whose statement before the Committing Magistrate was admitted in evidence under section 33 of the Evidence Act. It considered the evidence of recovery from these three accused and the medical evidence sufficient corroboration of the ocular account. For sound reasons benefit of doubt was given to the remaining accused as no specific injury was attributed to them. Moreover, the recoveries effected from them did not connect them with the commission of the crime. On the other hand, while convicting the appellants the trial Court gave no reason for not awarding the capital punishment. A notice was, therefore, issued to them that in case their appeal failed why their sentences should not be enhanced.
9. Criticising the finding, the learned counsel contended that there was no distinction between the case of those who have been acquitted and that of the appellants. He next contended that there was enough material on the record to show that the deceased was done to death by Ahmad Din Kamhar and his sons because the deceased was carrying on with Ahmad Din's daughter Mst.
Inayat Bibi. It may be straightaway mentioned that in their statements at the trial none of the accused took up this plea. The mere fact that in the F. I. R. The informant had said that Asghar deceased had come out of the house of Ahmad Din and was in the lane and had reached near the house of Lal son of Jhanda when he was attacked, did not lend support to the defence version that, in fact, Ahmad Din and his relation had on provocation attacked the deceased. The informant explained at the trial that he actually did not see Asghar coming out of the house of Ahmad Din. It was Faqir Muhammad (given up as unnecessary) and some others who had told him so at the time of the occurrence, therefore he made the statement in the F. I. R. He further explained that, in fact, he had seen him coming out of his own house. In our view this contradiction did not help the belated version of the defence, because the blood was found in the lane near the house of Lal son of Jhanda. Moreover, had the deceased been seen by Ahmad Din and his sons inside their house, they would not have let him go out. Learned counsel further pointed out from the cross-- examinatton of Muhammad Hanif, A. S. I. (P. W. 10) that the investigate--ing Officer did not find loin cloth and the shoes of the deceased at the place of occurrence when he prepared the inquest report. This also indicated that the deceased was surprised by Ahmad Din and his sons. This admission would again not help the accused because in his struggle for life while running and under attack his shoes and the loin cloth might have been left at the place of occurrence which could have been picked up later by his relation. We, however, find that at the time of the post-- mortem the dead-body was not naked. Above all, had Ahmad Din and his sons killed Asghar, then why would the informant substitute the accused for the real culprits. No doubt, there is enmity between the informant and the accused, but substitution is a rare phenomenon. It seems that the defence wanted to make premium out of the aforementioned contradiction made by the informant about the deceased coming out of the house of Ahmad Din, but has not succeeded.
10. Sole question for determination in the case would be whether the eye-witnesses should be relied upon. Admittedly the informant is the cousin of the deceased. There is old blood-feud between the informant and the accused party. P. W. 9 Lal, son of Taja's sister's son Nazra was accused of the murder of Bhullu brother of Jalal accused. The witness is not related to the deceased and there is no direct enmity with him. He was nearly 70 years of age at the time of the occurrence. He was in his house when he heard the alarm, he came out in the lane and witnessed the occurrence. He has corroborated the testimony of the informant. Much stress was Laid by the learned defence counsel on the fact that Lal informant and P. W. 12 Muhammad Akhtar were chance witnesses. True, these two did not live in the lane where the occurrence took place, but we find that P. W. 9 Lal, son of Taja lived near the place of occurrence he was a natural witness. He has mentioned the presence of the other eye-witnesses in the F. I. R. It may be added here that P. W.
Muhammad Akhtar whose statement was transferred under section 33 of the Evidence Act because he had gone to the Middle East and could not 'be produced without undue delay, admitted that his father was one of the accused for the murder of Bhullu. Thus he is not a disinterested witness. It is noteworthy that during his cross-examination before the Committing Magistrate, Muhammad Akhtar has not suggested the defence version i.e. The deceased was killed by Ahmad Din and his sons. This would also show that the defence version was an after-thought.
No doubt, Muhammad Akhtar is a resident of Karari Bala Kalan and has admitted his enmity, However, keeping in view the previous family feuds between the eye--witnesses and the accused and that P. W. Muhammad Akhtar who also did not appear at the trial, under these circumstances, the eye- witness-account would require corroboration of their statements.
11: Since none of the weapons recovered from the acquitted accused were blood-stained, in our view, they were rightly given the benefit of doubt. For the same reason, the benefit of doubt will also be extended to Jalal whose stick was not found to be stained with blood and as such the recovery effected from him did not connect him with the commission of the crime. We, therefore, acquit him.
12. Riaz accused who got recovered the licenced pistol of hiss brother, would also get the benefit of doubt because no crime empty was recovered from the spot, therefore, the weapon could not be got B examined from the Forensic Science Laboratory. Even otherwise though the doctor has described injury No. 3 as a fire-arm injury which is a grazing wound, it could also be caused by a blunt weapon. In so far as the charring is concerned it could be due to the coagulation o blood.
There is weight in the submission that had any one of the accused been armed with a pistol he could have used it more effectively. For the foregoing reasons we give the benefit of doubt to Riaz accused and acquit him.
13. So far as Mian Khan is concerned, hatchet, Exh. P. 5 was recovered at his instance on 25th May, 1974, i.e. On the third of the occur--rence. It was found to be stained with human blood by the Chemical Examiner and the Serologist. Besides Muhammad Hanif A. S. I. (P. W. 10), this recovery was witnessed by Lal informant and Muhammad Shafi (given up as unnecessary). True, the informant has enmity with the accused, but we find that the Investigating Officer has no motive to depose falsely about this recovery. Investigating Officer is as good a witness as any other unless something is brought out against him, In this case there is nothing against Muhammad Hanif A. S. I.
To disbe--lieve him. Mian Khan is said to have got recovered hatchet P. 5 from within his house. In our opinion this- recovery is sufficient corrobora--tion of the ocular testimony against Mian Khan.
Injuries Nos. 1 and 2 were suffcient to cause death in the ordinary course of nature. It may also be mentioned that some of the witnesses also said that Mian Khan C used the hatchet from the blunt side also. Injury No. 1 is an incise wound whereas injury No. 2 is a blunt weapon injury. According to the doctor both injuries were suffcient to cause death in the ordinary course of nature. The appeal of Mian Khan fails and there being no mitigating circumstance in his case, we enhance his sentence from life imprisonment to death. He be hanged by the neck till he is dead.
Life imprisonment enhanced to death sentence.