SHAH NAWAZ KHAN, J.-This appeal is barred by 20 days, but as this is an appeal against the death sentence enhanced and imposed by the High Court, we condone this delay.
2. It is directed against the judgment dated 12-10-1980 of a Division Bench of Lahore High Court whereby the appeal of Mian Khan (present appellant) was dismissed and there being no mitigating circumstance in this case his sentence of imprisonment for life was enhanced to death, and it was directed that he be hanged by neck till he is dead.
3. This appeal is only by Mian Khan son of Raja, caste Gujjar resident of village Karariwala, Tehsil Kharian, District Gujrat. He was tried under section 302/148/149, P. P. C. Along with six others, namely, Jalal, Raja, Riaz, Bahadur, Lai and Palhu for rioting, being armed with deadly weapons and that in prosecution of their common object, they committed the murder of Muhammad Asghar on 23-6- 1974 at "Degarwela" time in the area of village Karariwala, Tehsil Kharian, District Gujrat.
4. The Sessions Judge, Gujrat, after trial, by his judgment dated 29-11-1977, acquitted Raja, Bahadur, Lai and Palhu by giving them the benefit of doubt, but he held Jalal, Riaz and Mian Khan guilty of committing the murder of Muhammad Asghar deceased, in furtherance of their common intention under section 302/34, P. P. C. And each one of them was sentenced to life imprisonment and also to pay a fine of Rs. 500 or in default to undergo R. I. For one year.
5. The three convicts including Mian Khan, appellant, went on appeal before the Lahore High Court, Lahore, in Criminal Appeal No. 1092/77 which was heard by a Division Bench of that Court, who by judgment dated 12-10-1980 accepted the appeal of Jalal and Riaz, the former on the ground that the weapon recovered from him was not blood-stained, and, therefore, he was entitled to the right of the benefit of doubt, and the latter on the ground that although he had got a licensed pistol of his brother, recovered before the police, but since no crime empty was recovered from the spot, as such that weapon could not be got examined from the Forensic Science Laboratory, therefore he was also entitled to get the benefit of doubt. So far as Mian Khan (present appellant) is concerned, the hatchet Exh. P. 5 was recovered at his instance on 25-6-1974, i. e. on the third day of occurrence, and it was found to be stained with human blood by the Chemical Examiner and the Serologist. The evidence of Muhammad Hanif, A. S.1. Who had investigated the case was believed by the High Court and they found that the Investigating Officer had no motive to depose falsely about the said recovery. This recovery was considered sufficient for corroborating the ocular testimony against Mian Khan appellant. The appeal of Mian Khan was dismissed and his conviction for offence under section 302, P. P. C. Was upheld. As the High Court did not find any mitigating circumstances, his sentence from life imprisonment was enhanced to death. Mian Khan has now challenged his conviction and sentence before this Court.
6. We have heard the arguments addressed before us by Mr. Naimat Khan, Advocate, on behalf of the appellant and Mr. Shujauddin Qureshi, Advocate, on behalf of the State.
7. The occurrence took place at Mari Degarwela time and the scene of occurrence is about 10 miles from Police Station Kharian where F. I. R. Was lodged by Lal Khan (P. W. 8) on the same day at 8-00 p. m. Exh. P. A. Is the correct copy of the F. I. R. The occurrence, as stated in evidence, took place one hour before sunset time.
8. Muhammad Asghar deceased had suffered so many as 19 injuries which were found on his body by Dr. Ghayyur Alam (P. W. 1) at the time of post-mortem examination. Death of Muhammad Asghar deceased, in the opinion of the Doctor, was due to shock and haemorrhage as a result of Injuries Nos. 1 to 19 and Injuries Nos. 1 and 2 were sufficient to cause his death in the ordinary course of nature. Injury No. 1 found on the dead body of Muhammad Asghar deceased was an incised wound 2J" X J' under--neath bone fractured on right side on chin and injury No. 2 was a swelling 3' x 3' on right side of head 1" above right ear. Both these injuries were found grievous and fatal. The Doctor stated that Injury No. 2 could be caused by a blunt-weapon. He submitted that the fracture of sphenoid bone was the result of Injury No. 1. He submitted that Injury No. 2 appeared to be a mere swelling on the right side of the head, but the temporal bone was fractured underneath that injury and this could easily be caused by a blunt-weapon. Injury No. 3 found on the dead body of the deceased was a lacerated wound 2' x J" through and through charring around the wound edges inverted on the lobule of right ear. According to Dr. Ghayyur Alam (P. W. 1) this injury could be caused by a fire-arm within a range of three feet. Rest of the injuries found on the dead body were contusions of various sizes except Injury No. 19 which was an abrasion on left knee joint.
9. The eye-witnesses of the occurrence are Faqir Muhammad, Muhammad Akhtar and Lal, besides Lal Khan who had lodged the F. I. R. Statement of Muhammad Akhtar which had been recorded by the Committing Magistrate was transferred to the Sessions file under section 33 of the Evidence Act because he had gone out of the country and was not available for examination in Court, when the trial commenced.
10. Motive for the occurrence, as stated by P. W. 8 Lal Khan com--plainant, was that Palhu son of Mohra brother of Jalal and Raja accused had been murdered 8 years ago and the deceased was charged for that murder. Lal Khan was also mentioned to be an accomplice, but, after the trial, all the accused were acquitted. Later Mian Khan accused and his two accomplices Raja and Riaz, since acquitted, along with two other persons, made a murderous assault on Muhammad Asghar, deceased by firing at him, and a case under section 307/148/149, P. P. C. Was pending at the time of the present occurrence. Some other enmities were also mentioned between the parties of Mian Khan accused-appellant and the deceased in this case, and it has been made out that there were serious disputes between the parties. And several cases had been registered against one party or the other. The accused (all of them) are Inter se related. So far as Mian Khan accused-appellant is concerned the allegation of the prosecution witnesses is that he had caused Injury No. 1 with a hatchet to Asghar deceased and this injury was found by the Doctor to be fatal. According to Dr. Ghayyur Alam, P. W.
Injuries Nos. 1 and 2 were grievous and fatal and these two injuries were sufficient to cause death in the ordinary course of nature. Injury No. 2, was, in the opinion of the Doctor, caused by a blunt weapon.
11. According to Exh. P. F. a blood-stained hatchet Exh. P-5 was re--covered from the residential house of Mian Khan accused from inside a Kothrl at his instance while in police custody. It was sealed and later sent to the Serologist, who found the hatchet Exh. P-5 to be stained with human blood. Lal Khan (P. W. 8) has stated that Mian Khan gave a hatchet blow under the chin of Asghar deceased. Lal son of Taja (P. W. 9) fully corroborates Lal Khan (P. W. 8) in this respect. According to him Mian Khan accused gave a hatchet blow at the chin of the deceased. Muhammad Akhtar whose statement, as recorded by the Committing Magis--trate, was transferred to the Sessions' file has also stayed that Mian Khan accused-appellant gave a hatchet blow at the neck of the deceased. Undoub--tedly alt these witnesses are closely related to each other and also to the deceased, but the recovery of the blood-stained hatchet at the instance of Mian Khan accused- appellant, lends full corroboration to the eye-witness account.
12. The learned counsel for the accused-appellant submitted that the recovery of the hatchet should not be believed because it was sent for examina--tion to the Serologist after two months. It is, however, proved on record that after the recovery of the hatchet Exh. P. 5, it was sealed and there is nothing to suggest if that seal had been broken by any one, before it reached they hands of the Serologist. The occurrence took place at late Degarwela time on 23-6-1974 and the recovery was made from Mian Khan accused-appellant on 25-6-1974 when he was arrested. The recovery was made by Muhammad Hanif P. W. 10, who had investigated the case. The recovery stands fully proved on the record.
13. In the F. I. R. Exh. P. A. Mian Khan accused-appellant was charged for inflicting a hatchet blow on the chin of the deceased. The prosecution case against Mian Khan, therefore, stands fully established and the trial Court as well ac the High Court have both concurrently found that the fatal injury was caused to the deceased by Mian Khan accused-appellant with a hatchet. We, therefore, see no reason to disagree with them.
The learned counsel, appearing on behalf of the complainant in Cr. P. S. L. A. No. 623 of 1980, has not been able to successfully persuade us to believe that the other accused, some acquitted by the trial Court and some by the High Court were guilty of the offences with which they were charger'. By any corroborative evidence, besides the ocular testimony of the interested witnesses. Moreover that petition was also time-barred. Cr. P. S. L. A. No. 623 of 1980 is, therefore, dismissed.
14. In Criminal Appeal No. 4 of 1981, we have already held that Mian Khan accused-appellant is guilty of offence under section 302, P. P. C. For inflicting fatal injury with a hatchet to Asghar deceased and we have already maintained his conviction on that charge. Regarding the question of sentence, we have noted with care that the trial Judge while awarding life imprisonment to Mian Khan accused-appellant was mindful of the total number of injuries caused to the deceased some of which were caused with blunt weapon and one of which was treated to be caused with fire-arm.
But since the other accused have been acquitted. Mian Khan accused-appellant is held responsible only for causing Injury No. 1 to Asghar deceased which along with injury No. 2 was considered sufficient to cause the death of the deceased. But as indicated above, Injury No. 2 was caused with a blunt weapon and none stands convicted for that injury because we do not have any clear-cut and straight forward material on record to held any individual to be guilty for causing that injury.
15. While enhancing the sentence awarded to Mian Khan accused appellant, the learned Judges of the Lahore High Court have simply stated that the trial Court has not given any reason for not awarding the capital punishment and as there was no mitigating circumstance in his case, his B sentence was enhanced to death from life imprisonment. However, the High Court also failed to give any cogent reason for converting the sentence of life imprisonment to that of death. Therefore, the death penalty imposed by the High Court is set aside.
16. From the appraisal of the evidence as well as the arguments addres--sed before us on behalf of the parties, we are impressed that the trial Court was justified in awarding the sentence of life imprisonment to Mian Khan (convict) in the given circumstances of the case, which we maintain.
As the award of compensation is mandatory under section 544-A, Cr. P. C. And having heard the learned counsel for the respondent in respect of it, we hereby direct that a sum of Rs. 5,000 shall be recovered from the convict-- appellant and paid as compensation to the heirs of the deceased Muhammad Asghar in addition to the sentence imposed by the trial Court on him. In default of payment of compensation the accused shall suffer R.
1. For six months. s. Q.Appeal allowed.