1. MUHAMMAD AFZAL ZULLAH, J.-The learned Sessions Judge, Lyallpur has, by his judgment; dated 26th February 1969, con--victed Inayat, aged 45 years, Muhammad Rafiq, aged 21 years, Muhammad Sarwar, aged 28 years, and Muhammad Anwar, aged 27 years, under sections 302/34 and 324/34 P. P. C., for having caused the death of Ghulam Haider, aged 33 years, and for having caused injuries to Ghulam Rasul P. W. And his brother Sardar Khan, in the area of Chak No. 591, G. B, (Gangapur), Police Station Lundianwala, District Lyallpur, can the morning of 13th February 1968. For the charge under section 302/34, P. P. C., Inayat, Sarwar and Anwar have been sentenced to death while Rafiq has been sentenced to transportation for life and a fine of Rs. 5,000 to default of payment whereof to suffer five years' R. I. For the charge under section 324/34, P. P. C. All four of them have been sentenced to three years' R.I. The sentence of imprisonment has been ordered to ran concurrently with that of transportation for life in the case of Rafiq while in the case of three others, the sentences of imprisonment are to operate only if their sentences of death are not confirmed, by this Court. The convicts have appealed and the reference under section 378 Cr. P. C., for the confirmation of sentences of death is also before us. Both the matters are being disposed of by this judgment.
2. The facts of the case, as disclosed in the F. I. R. (Exh. P. A.) lodged by Fazal Ahmad P. W, are as follows :- One Mst. Noor Begum, widow of Rehman, died issueless about 15 years ago, leaving about 29 acres, of land in Chak No. 591 G. B. After her death, 1/4th of the land i. e. Seven and a quarter acres, went to Barkat Ali and Muhammad Tufail, her brothers. The remaining 4th of the land went to Muhammad Anwar and Muhammad Sarwar appellants who are sons of Jiwan Khan, a' brother of Rehman (deceased husband of Mst. Noor Begum and also to Sharif, Sardar and Siddique sons of Sultan Ali, another brother of aforesaid Rehman. None of the nephews of Rehman is resident of Chak No. 591 G. B. A private partition took place between the above-mentioned all the successors/co---sharers through Murad All and Fazal Ahmad P. Ws. And they took possession of their respective pieces of land. Killa No. 25 in Square No. 91, which Fame to the share of Barkat Alo and Muhammad Tufail, was water-lodged. Therefore, an area of about to kanals of Killa No. 18 in Square No. 96 was given to them, in addition to their share, as compensation. Barkat Ali died about 4/5 years before the occurrence, leaving three sons, namely. Ghulam Haider deceased, Ghulam Rasul the injured P. W.
2. And their brother Sardar Khan who was also injured (not examined as P. W.). About 8 or 9 months before the occurrence, Anwar and Sarwar appellants came to the sons of Barkat Ali with the request that the land in Killa No. 18 be given back to them. This request was repeated to or three times sub--sequently, through Murad Ali and Ali Ahmad P. Ws. But the deceased and his brothers refused to oblige them. One day before the occurrence, once more a Panchayat was brought to Ghulam Haider and his brothers for the same purpose. No compromise could be effected. All the four appellants on the one side and the deceased and his brothers oil the other, however, exchanged abuses and quarrelled with each other but the members of the Panchayat intervened and separated them.
3. On the day of occurrence, i. e. 13 February 1968, at about 8 or 9 a. m., all the four appellants were present in Killa No. IS with a plough. Muhammad Anwar appellant, while carrying a dang, was ploughing the land while the remaining three appellants, having armed themselves with kulharis were present there. The deceased, Ghulam Rasul P. W. And Sardar Khan also came there and tried to stop the appellants from ploughing the land. An altercation ensued in which abuses were exchanged. Thereafter, Inayat appellant gave a hatchet blow -on the right side of the head of the deceased while Sarwar appellant gave a kulhari blow on the left side of the head of the deceased.
4. The deceased fell down whereupon Muhammad Anwar appellant gave a dang blow on his back.
5. The blows on the head of the deceased were given from the blunt side of the hatchet. Ghulam Rasul P. W. Was given Kuhari blows by Inayat, Rafiq and Sarwar appellants on his- head, and a sots blow by Anwar on his right arm and shoulder. Sardar Khan was given kulhari blows or his nose and left arm by Rafiq appellant and Anwar appellant gave him soti blows on the right forearm, left elbow and right shoulder. Fazal Ahmad and Mehar Khan P. Ws. Who were present nearby, saw that occurrence, raised an alarm and separated the parties. The in--jured were taken by Fazal Ahmad and Mehar Khan P. Ws. To Gangapura Dispensary, which is at a distance of about to miles from the spot. On the way the deceased had given the names of his assailants as Inayat, Sarwar and Anwar appellants, to these P. Ws.
3. After obtaining the reports of medical examination of the injured, Fazal Ahmad P. W. Left for the Police Station (Lundianwala) which is at a distance of 16 miles from the place of occurrence. On the way, however he learnt that the police was present in Chak No. 561 G. B. (at a distance of 3 miles).
6. Therefore, he went there and made the statement (Exh. P. A.) at 12-30 noon which was recorded by Fazal and Ali, A. S. 1. P.W. Fazal Ahmad also handed over a ruqqa (Exh. P. U.) written by the doctor and addressed to the police, wherein it was stated that Ghulam, Haider was in bad condition and was unconscious due to head injury. The A. S. C. Sent the statement (Exh. P. A.) to the Police Station for registration of the case whereupon the formal F. I. R. (Exh. P. A.,/1) was drawn by Muhammad Inayat, M. H. C. P. W. At 2 p.m. The A. S. I. Himself proceeded to and reached Gangapura at 1 p.m. He asked the doctor, vide note (Exh. P. R.), whether Ghulam Haider was fit to make state--ment ; but was told, vide Exh. P. R./I, that he was unable to make any statement. Ghulam Haider died on the same day, i. e. 13th February. After the usual preliminary investigation, which included the preparation-of the inquest report, the A. S. I. Went to the spot. The blood-stained earth was collected from Killa No. 18 of Square No. 96; vide memo. (Exh. P. F.). The appellants were arrested onth 15th February 1968. A soti was recovered from Anwar appellant while one Khuhari each was recovered from the other three appellants. The recovery memos do not show that these weapons were blood-stained. There is no evidence on the file, in the form of reports from the Chemical Examiner/ Serologist, to show that these weapons were used in the occurrence.
7. Dr. Saif-ul-Islam examined Ghulam Haider on 13th February 1968 and found the following injuries oil his person :-- "(1) A contused Swelling on the right temporal region on, head measuring in 3" diameter 1" from the right ear and to inches from right eye-brew,
(2) An one inch round swelling on head 3" from the left ear and 2" from the left aye. '
(3) An abrasion on the back measuring 2" x --".
8. The patient was unconscious with stertorous breathing, right pupil is dilated and the patient was in a very bad condition.'
9. On the same day at 11 a.m., he examined Ghulam Rasul P. W. And found the following injuries on his person:-- "(1) An incised wound 2' x --' x hone deep oil the right side of skull 3" from right ear and 3' from the right eye-brew.
(2) An incised wound 1--' x --" x bone deep (in the left side of the skull 2--" from the left car and 5-- front the left eye-brew.
(3) An incised wound --" x. --'' x --" on the top of skull 2--" from injury No. 1 and 2" from injury No. 2.
(4) An abrasion 4" x --" on the back of the right arm longitudinally.
(5) A contused wound 2--" x 1" on the right. Shoulder."
10. All the injuries were simple and their duration was three hours. Injuries Nos. I to 3 were caused by sharp-edged weapon while the remaining to were caused by blunt weapon.
11. On that xery day at 11-15 a.m., he examined Sardar Khan and found the following injuries on his person :---
(1) An incised wound 1-- x --' x --" on the face extending from the left side of the nose down to the lip, -- from the left eye:
(2) An incised wound 1--' x --' x 1/8" on left elbow.
(3) An abrasion on the left elbow, 1--" from injury No. 2.
(4) A contused swelling 2" x 1" on the back of right forearm, 6" down the right elbow.
(5) A contused wound 1--" x 1" on the right scapula (back side of the shoulder)."
12. All these injuries were simple. Injuries Nos.1 and 2 were caused by sharp-edged weapon while the others were paused by blunt weapon. The duration was about three hours.
13. After the death of Ghulam Haider, the autopsy on the dead body was performed by Dr. Abdul Ghafoor P. W. On 14 February 1968 at 2 p.m. He found the same injuries on the dead body as were found by he other doctor. On dissection of the skull, sufficient amount of blood was found in the loose tissues of the scalp. Right and left temporal bones and parietal bones were fractured under injuries Nos. 1 and 2. Fronto parietal suture was opened. Blood clot was present between skull bones and membranes of brain in both the temporal regions and. Blood was also present between the membranes and the brain substance. Injuries Nos. 1 and 2 were grievous and dangerous to life and were individually as well as collectively sufficient to cause death in the ordinary course of nature.
14. Death was caused by the compression of the brain due 'to these injuries. All the injuries were caused by blunt weapon. The rest of the organs were healthy. The stomach - was found to be empty. This circumstance is of no significance in this case be-- cause, admittedly, the deceased remained alive for several hours, after the attack. The probable the between the injury and the death was about six hours and between death and post-- mortem 24 hours.
4. At the `trial, Fazal` Ahmad, Ghulam Rasul and Mehar Khan (P. Ws. 9, 10 sand 11 respectively) were produced as eye witnesses. They supported the prosecution case as disclosed in the F. I. R. Fazalth Ahmad and Ghulam Rasul also gave evidence in respect of the possession of and dispute on Killa No. 18 of Square No. 96. In this, they are supported by Murad Ali (P. W. 6) and Ali Ahmad (P. W. 7). In respect of the possession the prosecution also relied on copies of Khasra Girdawaris from 1956 to 1967 .(Exhs. P. N. To P. Q.),'1963-64 Jamabandi (Exh. P. M.) and the Canal Khatuni for Kharif 1967, (Exh.
15. P. B. B/I). On this question, to Court witnesses Imam Din Lambardar (C. W: 1) and Nisar Ahmad (C. W.
16. 2) an official from the office of Saddar Qanungo, and to defence- witnesses Muhammad Siddique, `a Canal 'Official (D. W. 1)-and Abdul Subhan Saddar Qanungo (D. W. 2) were also examined.
17. Muhammad Yar Patwari (P. W: 8) who hag prepared the site plan (Exh. P. L.) on 15th February 1968 'which shows that some land in Killa No. 18 had been ploughed, was recalled as C. V.
3. He then produced the original1963-64 Jamabandi (Exh. C. W. 3/A) and also proved the Khasra Girdawaris produced by the defence (Exhs. D. F., D. G., D. H. And D. J.). : They relate to the years 1958 to 1962. The defence also produced a copy, (Exh. D. E. Of the 1963-64) Jamabandi kept in the office of Saddar Qanungo. The Court witnesses produced Exh. C. W. 1/A the Dhal Batch which contained entry. (Exh.
18. C. W. 1 /B) showing one Nazir Hussain and Ghulam Haider deceased in possession of the disputed land, and the original 1963-64 Jamabandi in the office of Saddar Qanungo (Exh. C. W. 2/A) with relevant entries (Exhs. C. W. 2/B and C. W. 2/C). The evidence of the official witnesses from Canal and Revenue Departments is mainly based on documents.
19. The defence plea is that of denial about the occurrence. It is claimed that though private partition took place between the co-sharers yet the land in dispute was given to Anwar and Sarwar appellants and that they were in possession at the-relevant the.
20. The learned trial Judge has believed the entire prosecution version. He gave the verdict of guilty and convicted and sentenced the appellants as stated in the opening part of this judgment.
5. Mr. S. M. War, the learned counsel for the appellants, has taken us through the evidence including ail the documents. He has vehemently contended that the prosecution has failed to prove that the possession of the disputed land was with the deceased and his brothers: His main argument is that according to the 1963-6; Jamabandi, Barkat Ali, the father of the deceased, was tenant-at-will of Sarwar and Anwar appellants and that after his death (in about 1964/65), tenants other than the deceased and his brothers were in physical possession on behalf of the aforesaid appellants.
21. Therefore, according to him, the appellants should be held to have been in possession of the disputed land at the the of the occurrence and if they caused injures to the complainant party, it was in the exercise of right, of private defence of property.
6. According to the prosecution, after the death of Mst. Nur Begum the parties privately, partitioned the land. Killa No. 25 of Square No. 91 which was thur affected, fell to the share of Barkat Ali and Tufail. "In order to make up that deficiency. Barkat Ali and Tufail were given 2 canals of land in Killa No. 18 of Square No. 96". This partition took place at the baithak of Murad Ali (P. W. 6). Sarwar and Anwar appellants and the other shareholders "took possession of the land according to that private partition, and started cultivating it. While the aforesaid to appellants and their other cousins who lived away from Chak No. 591/G-.B. Leased: out their share, Barkat Ali used to cultivate the land himself. It is significant to note that though Anwar appellant denied the fact um of private partition, Sarwar appellant admitted it in answer to question No. 4 (at the trial) but added that the private partition was not effected through the members of the Panchayat (the P. Ws.). In respect of the details of the private partition, he denied that the land in Killa No. 18 had gone to the share of Barkat Ali and Tufail. Thus the private partition is admitted. However, while the prosecution has produced witnesses about 'the details of the partition, the defence has chosen not to rebut that evidence except by making assertions in their own statements. If the private partition had taken place through some other persons or in any other manner, it was not difficult for the defence to produce witnesses in this behalf.
22. This part of the prosecution case is supported by no less than three witnesses in addition to the statement of Ghulam Rasul. It finds support from independent circumstances. They are-
(i) The uncontroversial entries in the Jamabandi show that Killa No. 25/1 (3-- kanals) was banjar due to thur up to 1960, when in Rabi of that year it came under cultivation for the first the. The remaining part of killa No. 25, i.e. 25/2 (4-- kanals) is banjur due to thur throughout the relevant period and never came under cultivation, It is obvious that one acre of land out of about seven acres of land which went to the share of Barkat Ali and Tufail, was at the the of private partition absolutely worthless. Therefore, the deficiency needed to be compensated and about 2 kanals of land in Killa No. 18 of Square No. 96 (excluding the land coming under paths. Etc.) may well have been given to Barkat Ali and Tufail. It may he mentioned that the remaining land its Square No. 96, i.e. Killa Nos. 14, 15 and 16, had gone to the share of Barkat Ali and Tufail. Therefore, it is more natural and likely that the land which was to he given to them in compensation (in Killa No. 18) would be in the same square.
23. The learned counsel in this behalf argued that even without the addition of land in Killa No. 18. Tufail and Barkat Ali had obtained 7-- killas, which is about 4 kanals, more than their share of 7-- killas; therefore, there was no reason for adding anther about 2 kanals (of Killa No. IS) to their share. When asked as to what exactly was the total area to be partitioned between the parties, the learned counsel, with the help of in junior, gave us the figure 246 kanals 8 marlas. One-fourth comes to 7 acres 5 kanals and 12 marlas (about 7-- killas). Therefore, the learned Counsel does not appear to be correct in saying that without Killa No. 18 the land with Barkat Ali and Tufail was more than their share. There can be to reasons fur the confusion which may have led the learned counsel to raise this argument. Firstly it is said, that Mst. Nur Begum died leaving 29 acres of land and thus 7-- acres fell to the share of Barkat Ali and Tufail. This may be only a general statement and may be without the exactness; of entries in the document. And secondly, some tunes the land under common usage like path watercourse, the is also included in the entries while on the spot the actual land is less in area due to the exclusion if the above items. In any case even if it be assumed that 4 kanals had gone to Barkat Ali and Tufail in excess of their share, the disputed land in Killa No. 18 about 2 kanals) would make the total excess about 6 kanals. The excess was a compensation in respect of the entire land in Killa No. 25 which is about one Acre and was at the relevant the banjar due to thur. The private partition, even if 6 kanals was considered as in excess, would not be absolutely unreasonable and it cannot be said that it would not have been accepted by the parties. It is to be noted that the area given by the Patwari (P. W. 8) of thur affected Killa No. 25 is 4 kanal. This appears to be with reference to be Killa No. 25; 2 and Killa No. 25/1 appears to have been ignored, because that part, though originally thur affected came under cultivation in about 1960. But at the the of private partition, the entire area in Killa No. 25, i. e. About 8 acres was thur affected and the partition at that the must have taken place on that basis. In fact, the reclamation of about 8 kanals of land in Killa No. 25/1 may have led Anwar and Sarwar appellants to claim that the compensation originally granted was due to the entire area in Killa No. 25 being thur affected; and because a part of it had been reclaimed, therefore the y might have felt entitled to the return of Killa No. 18, which was originally given in compensation. This may be the real cause for their having gone back in the private partition after some years, particularly after the death of Barkat Ali who according to P. W. 6, was, present (from the complainant party) at the the of private partition.
(ii) Killas Nos, 14, 15 and 16 of Square No. 96 had, admittedly, gone to the share of Barkat Ali and his brother Tufail. In the Jamabandi of 1963-64, these three killas and Killa No. 18 are mentioned seriatim. Barkat Ali is mentioned in column No. 4 as kashtkar. According to the defence the real entry about Killa No. 18 is and should have been as ghair dakhilkar (tenant-at-will), while according to the prosecution the entry is and should have been as hissadar (co-sharer). Keeping the con-- troversial part of the entry aside, it is to be noted that the entry of ghair dakhilkar would not go with Killas Nos. 14, 15 and 16 because they were, it is admitted, under the hissadari kashr of Barkat Ali. If that is so, there being one and the same entry for all the four killa numbers of Square No. 96, it is more in line with the normal and natural circumstances that whatever is the position about Killas Nos. 14, 15 and 16, the same would be about Killa No 18. This being the case, the disputed land was in possession of Barkat Ali as owner and not as a tenant.
24. It is necessary here to deal with another contention of the learned counsel that the entry in Exh. D.
25. E., which is stated to be a copy of the original entry (Exh. C. W. 2/B), should be treated as correct. In copy (Exh. D. E.), Barkat Ali is shown as ghair dakhilkar and in the entry of Jamabandi of 1903-64 (Exh. C. W. 2/B) the word "ghair dakhilkar" is scored out with red ink and initialled. On the other hand, he contends that the copy (Exh. P. M.) and the entry in register (Exh. C. W. 3; A) should be held to he incorrect. In this entry, Barkat Ali is shown in 1963---64 in possession as hissadar. The word "ghair dakhilkar" is scored out in red ink. It has been explained by all the witnesses on this subject, that though the entries in respect of cultivation in the Jamabandi are taken from the previous Khasra Girdawari yet at the the of preparation, if the factual position is found to be contrary to what is entered in the Khasra Girdawari, the correct position is entered in the Jamabandi. Before 1963-64 the Khasra Girdawari does show different persons as tenants of the land in dispute ; but in 1960 and onward Barkat Ali is shown in possession as ghair dakhilkar. It appears that at the the of preparation of Jamabandi, it was found that Barkat Ali was cultivating the land as hissadar. This, as shown above, is more in line with the fact that he was, admittedly, cultivating Killas Nos. 14, 15 and 16 in the same Square as hissadar, and Killa No. 18 has been mentioned along with aforesaid three killas. Therefore. The correct entry should have teen hissadar and not ghair dakhilkar. This also appears to be the reason why the word "ghair dakhilkar" was scored out in both the original copies of the Jamabandi. i.e. Exhs. C. W. 2/A and C. W. 3/A, and instead the word "hissadar" was also written in Exh. C. W. 2/A in pencil or ink but was subsequently rubbed out. This also explains the difference of entries to the to copies (Exhs. P. M. And D. E.). Exh. P. M. Was issued on 15th February i. e.
26. Soon after the occurrence and it tallies with the original entry in register (Exh. C. W. 2/A). The copy (Exh. .D. E.) was prepared long after the occurrence. It represents the original entry (Exh. C. W. 2/B) made in register (Exh. C. W. 2/A) but does not show that the entry of ghair dakhilkar has been scored out and initialled. It is quite possible that the word "hissadar" was rubbed out at the the that this copy (Exh. D. E.) was issued. The Jamabandi Register (Exh. C. W. 2/A) was at Saddar Canungo's office. Therefore, it, probably escaped the notice of the police during the investigation and this must have afforded opportunity for interfering with the entries therein. This supposition is supported by a very important circumstance. In the register (Exh. C. W. 2/A) at' Saddar Qanungo's office, column No. 8 relating to rent has the entry "batai nisfi basharah Khata No: 1". But in the other register which is also the original, i.e. Exh. C. W. 3/A, there is no entry in column No. 8. We have very carefully and minutely examined that column. There is absolutely no indication that any entry originally might have been made in that column and subsequently may have been rubbed out.
27. This leads to the most irresistible conclusion that originally when both the registers were prepared at one and the same the, the entry "batai nisfi". Was not mentioned in column No. 8 in either of the originals ; but subsequently somebody made his entry in Exh. C. W. 2/A but failed to make the same entry in Exh. C. W. 3/A. This shows that when the Jamabandi was prepared, even if Barkat Ali was shown as ghair dakhilkar the column as to rent showed that he was not paying any rent to anybody. This was noticed by the concerned authorities in the process of checking/certification.
28. Therefore, the entry "ghair dakhilkar " was scored at as incorrect and instead the .Entry "hissadar" was made in. Column No. 4. This entry remained intact in register (Exh. C. W. 3,/A) which was noticed by the police soon after the occurrence during the investigation but as rubbed out in the register Exh. C. W. 2/A which was at the Saddar Qanungo's office.
29. (i.e) The next Jamabandi prepared after 1963-64 has not been produced by any of the parties.
30. Probably it was prepared after the occurrence which took place in February 1968. In normal course of events, if Barkat Ali, was in possession of Killa No. 18 in 1964 in the capacity of an owner, he is likely to continue as such unless there is any change in the possession. No such change has either been proved nor has been suggested. Therefore, it can be legitimately presumed that till his lifetime Barkat Ali and, after his death his sons, i. e. The deceased and his brothers, would be in possession of this land as owners. And if the names of some tenants are mentioned in Khasra Girdawari, they must be holding on behalf of sons of Barkat Ali.
31. The learned counsel, in this connection, argued that the entries in the Khasra Girdawari. (Exh. P. Q.) relating to 1964, 1965, 1966 and 1961 show that Niamat, his brother Taj and Nazir were, at different times, tenants-at-will under the owners ; therefore, during these years, the deceased and his brothers should be presumed to be out of 'possession. The argument is not acceptable for various reasons. Firstly, the after said persons being mentioned as tenants, does not necessarily show that they were the tenants under any of the appellants. As indicated above, the circumstances on the contrary show that the land in dispute being under the hissadar possession of the complainant party these persons were tenants under them. Secondly, it was elicited from Murad Ali in cross- examination that the land in dispute used to be cultivated by Ghulam Haider deceased himself but about six months before the occurrence, Nazir started cultivating it as tenant. Before that he said "some tenants also cultivated the said Killa but I cannot give their names". This explains the entries, in the Khasra Girdawari, of the names of Niamat, Taj and Nazir as tenants but under the complainant party. Thirdly, the entry in the Khasra Girdawari does not appear to have been made according to the admitted factual position. It column No. 3. Relating to the owners (in Exh. P. Q.), the entry "Nazir Ahmad, etc.", is made. This, the learned counsel conceded, was obviously incorrect because it should have been Tufail and others. It is also admitted that nobody, with the name of Nazir Ahmad had any connection with the ownership of the land in dispute.. Therefore, the authenticity of the entries in this Khasra Girdawari cannot be held to be beyond doubt. And fourthly, there are several (at least three) in--dependent and important circumstances supported by documents to show that in Kharif 1967 Ghulam Haider was cultivating the land in dispute jointly with Nazir son of Bassa. The latter being a tenant. These circumstances are mentioned in the 'stem of corroboration immediately next following.
(iv) The Khatuni (Exh. P. B. B.) was prepared by the Canal Patwari. In Kharif 1967, i. e. Before the occurrence Nazir Hussain and Ghulam Haider are shown in possession of the land in dispute. It is in the statement of Muhammad Yar, Revenue Patwari (P. W. 8) that the Dhal Bach is prepared from the aforesaid Khatuni and that the Dhal Bach for the relevant period was prepared by him, C. W. 1 Imam Din Lambardar, produced the Dhal Each of Kharif 1967 (Exh. C. W. I/A). At Serial No. 981 (entry C. W. 1/B), the names of Nazir Hussain and Ghulam Haider are recorded as liable to pay the dues. , This witness stated that he recovered the land revenue, half from Nazir Hussain and the remaining half from the brother of Ghulam Haider deceased. In cross-examination, the Lambardar explained that when the Canal Patwari visits the land, he makes the entry in the Khatuni about the owner and the person in possession of the land and that sometimes he enters the name of the cultivator as well as the owner. He further stated that the Dhal Bach (Exh. C. W. 1/A) was received by him in January 1968. This evidence also shows that the deceased was in possession of the land in dispute before the occurrence. There is yet another but more important piece of evidence to the same effect. It is found in the statement of Muhammad Siddique (D. W. 1); a Chakbandi Reader in the Canal Department, who produced the Canal Khasra from Kharif 1965 to Kharif 1968. According to him, the Canal Patwari prepares the Khasra after visiting the fields. To a Court question, he replied that the Canal Khatuni it prepared by the Patwari from these Khasras and that the Khatuni (Exh'. P.
32. B. B.) with its relevant entry (Exh. P. B. B/1) was correct according to the Khasras. In the Khasras, the name of Taj is entered as cultivator in Kharif 1965. There is no cultivation in Rabi 1966 but Nemat Gujjar is shown as cultivator in Kharif 1966, there is no cultivation in Rabi 1967 but Nazir and Ghulam Haider are mentioned as cultivators in Zaid Rabi 1967 and Kharif 1967. The names of the owners according to this witness, are not entered in the Khasra. Only the names of the cultivators are given but if the owner himself cultivates the land, then his name is also shown in the column of cultivation. This explains that in the Khatuni (Exh. P. B. B-) the names of Nazir and Ghulam Haider deceased are entered in such a manner that the latter's name comes in the column of cultivation, Killa No. 18 is not shown as under cultivation in Rabi and Kharif 1968. In cross-examination this witness stated that Ghulam Haider was also cultivating Killas Nos. 15 and 16 ,of Square No. 96 for these years jointly with different persons. The effect produced by the entire statement of this witness is that Ghulam Haider was in cultivating possession of Killa No. 18 as well as Nos. 14, 15 and 16 in Square No. 96; but he used to keep different persons as seeris (partners in cultivation). The witness was produced by the appellants. There is not even an iota of suggestion that the Khasra from which, he gave evidence was a forgery or that it contained any suspicious entry in so far as the cultivation by the deceased of the land in dispute at the relevant the is shown. The learned trial Judge, however, made a note that the word "Hussain" after Nazir's name appeared to have been made in a different ink. This does not make any difference because the name of Nazir Hussain, admittedly, was not a forgery. On the contrary, according to the defence the name of Nazir was correctly mentioned in the Canal Khasra and Khatuni.
33. When the learned counsel was confronted with the above piece of evidence produced by the defence itself, he contended that the entries in the Canal Khatuni and Khasra and so also in the Dhal 13 ach were all forgeries. It is to sweeping at statement to be accepted. There is absolutely no evidence to support this suggestion and it was not put to Muhammad Siddique D. W.
34. In the light of the above discussion, we hold that the prosecution version, contained in the statements of Ali Ahmad, Murad Ali, Ghulam Rasul and Fazal Ahmad P. Ws. In respect of the private partition, the details thereof and the possession of the land in dispute at all relevant times supported, as they are, by documentary evidence and other independent circumstances, is correct and that at. And before the the of occurrence Ghulam Haider deceased was in possession of the land in dispute.
7. In this behalf'; the learned counsel raised some other arguments also which need to be noticed.
35. In the alternative, he contended that even if it is admitted that Ghulam Haider deceased was in possession in Kharif 1967, it was not as an owner but he should be held to have cultivated as a tenant-at-will of Anwar and Sarwar appellants. In the light of the above discussion and all other circumstances, it is not possible to hold that Ghulam Haider was cultivating the land as tenant of the aforesaid appellants. He, undoubtedly, was in possession in his own right as owner. Moreover, this has not been the case of any of the parties throughout the trial nor any such suggestion was put to Ghulam Rasul, the brother of the deceased, nor have these appellants stated in their statements under section 342, Cr. P. C., that Ghulam Haider was' their tenant on the disputed land and that they, due to any reason, wanted to eject him. The contention, therefore, appears to be an afterthought and is repelled as such.
36. It was also argued that the land in dispute (Killa No. 18) was, admittedly, vacant in Rabi 1968 and, therefore, on the day of occurrence, i.e. 13th February 1968, if the appellants started ploughing it, they were neither trespassers nor they had committed any other offence. This argument is also without any force; because if Ghulam Haider was in possession in Kharif 1967, there being no change thereafter nor there being any evidence of surrender of possession by him in favour of any other person, the at of the appellants in ploughing the land, against the will of the deceased, amounted to taking forcible possession of the land. Therefore, this contention is also repelled.
37. Some paras. Of Punjab Settlement Manual and some provisions in the Land Revenue Rules were cited by the learned counsel to show that if Barkat Ali had been in hissadari cultivating possession, his name should have been entered in a different manner in the relevant Khasra Girdawari and the Jamabandi. In this connection, the learned counsel also relied on some portions of the statement made by Muhammad Yar Patwari (P. W. 8) and Abdul Subhan (D. W. 2). We have discussed, in detail, the relevant entries, evidence about which has been produced by both the parties; and on proper analysis have come to the conclusion that despite some inadvertent procedural mistakes and in spite of some other intentional acts of commission and omission qua the entries, Barkat Ali is prayed to have been in possession of the land in dispute as owner. Therefore, if the concerned authorities committed some mistakes in preparing the records, it does not affect the admitted or proved facts.
38. Lastly, it was contended that if originally the land in dispute was not included in the share of Barkat Ali and Tufail, any subsequent private arrangement between the parties, whereby the said land was given in compensation to them, must be strictly, proved and the onus in this behalf is very heavy on the prosecu--tion. The argument appears to us to be misconceived. ' There is no evidence nor is it the case of, the prosecution that at the the of mutation of succession, the land was partitioned between the parties in a certain manner and that it was a subsequent partition in which the land in disputed Killa went to the complainant party. According to the prosecution, as it has earlier been noted, the land was partitioned privately for the first the in the Panchayat of which Murad Ali (P. W. 6) was a member and it was at that very the that Killa No. 18 was given to the complainant party.
39. We, therefore, finding no force in any of the arguments of the learned counsel in this behalf, confirm the finding of the learned trial Judge that Ghulam Haider deceased was in possession of the disputed land.
8. One of the injured eye-witnesses, Sardar Khan, was produced by the prosecution at the trial but was not, examined because, as the learned trial Judge observed in para. 7 of his judgment "he was not capable of making the statement". However, his real brother Ghulam Rasul, who is also injured, has implicated all the four appellants. The injuries received by him were caused by sharp as well as blunt weapons, like kulhari and dang. There is absolutely no reason to think that he was not able to identify the assailants. If that is so, there is no justification to imagine that he may be falsely implicated someone of the appellants. The total number of injuries on the complainant side is 13.
40. Five of them are with sharp-edged weapons while the remaining are with blunt weapons. The complainant party consisted of the three brothers, all of them being young-men. It will be legitimate to assume that the assailants were in such a number that they were able to inflict so many injuries, a large number of them being fairly substantial, on all the three brothers without themselves suffering any harm. Therefore, the fact that the four assailants have been named is not unusual and the number does not appear to have been inflated.
41. Sarwar and Anwar appellants are related to Ghulam Rasul P. W. Though not very closely. This militates against any supposition as to substitution in so far as these to appellants are concerned.
42. So far as Inayat and Rafiq appellants are concerned, they are real brothers intense and their sister is married to a maternal uncle of Anwar and Sarwar appellants. While the latter to belong to Chak No. 103/R. B:, Police Station Khurianwala, District Lyallpur which is at a distance of 14/15 miles from the spot, the former are the co-villagers of Ghulam Rasul P. W. It is an admitted fact that along with Anwar and Sarwar appellants, three other persons, namely, Siddique, Sarwar and Sharif who are their cousins; i6 herited the land from Mst. Nur Begum in Chak No. 591/G. B. The latter three persons do not reside in this Chak and are outsiders like Anwar and Sarwar appellants. If Ghulam Rasul P. W.
43. Or, for that matter his brother Sardar Khan 'and the other eye-witnesses wanted to substitute real assailants with some innocent persons, the most likely choice would have been the aforesaid three persons who were co-sharers in the land in dispute and were highly interested in it. The fact, that they have not been implicated shows that the complainant party was not out to throw a wide net to involve all persons who could be imagined to be contenders in respect of the land in dispute. No direct enmity between Ghulam Rasul or the one hand, and Inayat and Rafiq on the other, has been suggested. If Anwar and Sarwar would have been accompanied by other persons, there is no reason why Ghulam Rasul should substitute Inayat and Rafiq for those other persons. The circumstance that and Rafiq are the residents of Chak No. 591/G. B. While Anwar and Sarwar reside at a distance of 14/15 miles, in a different village and police station, on the one hand militates against their false implication and on the other supports the supposition that they having come to Chak No.. 591/G. B., for the purpose of taking forcible possession of the land in dispute would have needed the help of some of the residents of this village. The most likely helpers would be their own close relations and they are the other to appellants, i. e. Inayat and Rafiq. It is in evidence that the land in dispute was being ploughed when the occurrence took place. Sarwar and Anwar could not have arranged the plough and the bullocks without any assistance from this village; which it is likely, would have been provided by their aforesaid to relations. Considering all these circumstances, we have come to the conclusion that there is no tangible reason to support the supposition that Ghulam Rasul might have falsely implicated any of the appellants.
9. So far as the identity and participation of the appellants is concerned, Ghulam Rasul's statement has the support of other reliable evidence. Mehar Khan (P. W. 11) who is not related to the parties, is an absolutely independent witness. It is suggested that this witness was interested in the complainant party because Fazal Ahmad P. W. And Ghulam Haider deceased had once helped him in an election. In answer to a suggestion on this question, the witness, admitted that he contested the B: D. Election but it was incorrect that Fazal Ahmad P. W. And Ghulam Haider deceased helped him in that election. He further stated that 5/6 years ago, he had taken on lease for a period of three years, for Rs. 2,520 the land of the accused persons, who, admittedly, are not cultivators of the village of occurrence. The witness also produced the Copy-book (Exh. P. C. C.) which contains the receipt (Exh, P. C. C./A). This receipt appears to have been signed by several persons, one of them being Muhammad Sarwar appellant. It is admitted that the Copy-book (Exh.
44. P. C. C.) was produced by this witness for the first the at the trial stage. In cross examination, he was questioned as to why he had done 'so He gave the following explanation :- "I produce this Note Book, because the statement of m; brother was challenged by the accused on this fact."
45. He was examined on 20th February 1969. His brother Ali Ahmad was examined as P. W. 7 on 18th February 1969. In cross examination in answer to certain questions, Ali Ahmad P. W had stated that Sarwar appellant used to stay with him in Chak No. 591/G. B., and that he had taken some land on lease frog him, three years prior to the occurrence. Some more question were asked from him about the details of this lease. It appear that Mehar Khan P. W. Had taken the same land on lease about 5 or 6 years ago. He also expected that similar questions, a were asked from his brother, may also be asked from him by the defence and, therefore, he brought the Note Book (Exh. P. C. C with him. This appears to us to be a reasonable explanation However, even if Exh. P. C.
6. Is excluded from consideration, the statements of Ali Ahmad (P. W. 7) and Mehar Khan (P. W. 11) when read together, create an impression that they, in fact, had taken the land of Sarwar appellant on lease, for sometime before this occurrence. After carefully scrutinising these statements, we have failed to find any weakness in them.
46. It was also suggested by the learned counsel that Mehar Khan is a chance witness. The witness was cross-examined at length in respect of his presence near the spot at the the of occurrence. He stood the test of cross-examination and we are satisfied that his presence was neither unnatural nor unusual nor was it by pure coincidence. The name of this witness is mentioned in the F. I. R.
47. Which in the, circumstances of this case, was fairly prompt. Therefore, we hold that this witness did see the occurrence. There is no reason why he should falsely implicate any of the appellants.
48. Fazal Ahmad (P. W. 9) is the real maternal uncle of the deceased. Learned counsel has argued that this P. W. Should not be relied upon because he is related to the deceased, is a chance witness and is inimical to Inayat and Rafiq appellants. We have already considered the question of false implication vis-a-vis the statement of Ghulam Rasul. If Ghulam Rasul had no motive to falsely implicate Anwar and Anwar appellants, there is no reason why Fazal Ahmad, who is only related to the deceased, should go to the extent of falsely implicating the foresaid to appellants. In so far as Inayat and Rafiq appellants are concerned, it is true that one Nazir, their close relation, had helped Mst. Daulat, the wife of Fazal Ahmad's' brother, in her litigation over some land with this witness.
49. Ghulam Rasul P. W. Admitted before the committing Magistrate that a niece of aforesaid Mst.
50. Daulat has been engaged to Latif, a bother of Inayat appellant. It is suggested that these circumstances were sufficient for Fazal Ahmad P.W. To falsely implicate Inayat and Rafiq appellants. We are not impressed by this argument. Fazal Ahmad denied the suggestion that he had falsely implicated these to appellants; and Ghulam Rasul P. W. Explained in his cross- examination that after Mst. Daulate succeeded in the litigation and the matter about land having been decided, there was no longer any dispute between her and Fazal Ahmad. We consider that the above circumstances are not of such a nature and type that they should impel Fazal Ahmad P.
51. W. Not only himself to falsely implicate to innocent persons who are only indirectly connected with the aforesaid land dispute qua Mst. Daulat but also should be able to influence Ghulam Rasul and Mehar Khan P. Ws. To toe his line. He could not be considered' to be inimical to these appellants. If, at all, he wanted to falsely implicate anybody, the choice in this behalf would have been the said Nazir and not these appellants. We have already noticed that the number of the assailants in this case being four is not improbable; and if that is so, there is no justification to suppose that Fazal Ahmad or any other witness would have substituted Inayat and Rafiq appellants for the real culprits. The witness has given reasonable explanation about his being present near the spot at the the of occurrence. We do not find anything improbable in his presence near the place of occurrence. He cannot be termed as a chance witness. Therefore, we hold that Fazal Ahmad P. W.
52. Also saw the occurrence and that there is no justification to suppose that he would have falsely implicated any of the appellants.
53. The learned counsel, at one stage, also argued that the occurrence' took place at a the when there was not sufficient light and that the witnesses were not able to identify the assailants. He, in this connection, referred to an admission made by Ghulam Rasul P. W. Before the, committing Magistrate to the effect that they "had not taken chahwela and the people were still asleep when the occurrence took place". This does not indicate that the people were asleep because it was night the. The admission shows only this that it was morning the when the occurrence took place and at that the it is not impossible to imagine that some people, who had nothing to do at that particular the, might still be asleep. In this case, to doctors were examined. The the of occurrence deduced from their statements supports the prosecution that it may be the morning the. As to whether the estimate of the witnesses that it was 8 or 9 a.m. Was correct with exactitude, it is not necessary to make any detailed comment because the estimates of villagers, in this' connection, are some times susceptible to some margin on either, side. It is an admitted fact that three brothers were injured, one of course fatally in this occurrence. The fact that all three of them reached the place where the appellants were ploughing the land, further shows that it may have been the morning the when they saw their land being ploughed and went to the spot. In any case, the fact that Ghulam Rasul P. W. Has been injured with such weapons that the assailants must have been very close to him, it cannot at all be imagined that he could not have identified his assailants. Therefore, considering all the circumstance; we hold that there is no question of a mistaken identity in this case.
54. It was also contended by the learned, counsel that the possibility that some persons in the vicinity may have witnessed the occurrence cannot be excluded. This may well be correct. But it is not possible to expect from the prosecution to cite or produce as witnesses, all the persons who witnessed the occurrence of the type of this case. Moreover, it is not possible to say that the other persons who might have seen this occurrence were more independent than Mehar Khan P. W. And that they have been withheld with any ulterior motive. In these circumstances, no adverse presumption can be raised against the prosecution.
55. The learned counsel also argued that conviction in this case should not be maintained without there being tiny independent cor--roboration of the eye-witnesses. We have analysed the statements of the witnesses at length and have come to the conclusion that they had. No interest to falsely implicate any of the appellants.
56. They cannot be considered as interested against or inimical to the appellants in such a way as to warrant a supposition that they might have falsely implicated` them. On the other hand, the indications are that the witnesses are not of the type who would falsely implicate any person because they have not roped in the other co-sharers who would be vitally interested 9 in the land in dispute. The number and nature of the injuries and the number and circumstances of the persons involved on both the sides are also indicative of the fact that-false implication or substitution is unlikely in this case. We, therefore, hold that no other confirmatory evidence than the, attending circumstances, already mentioned, is needed in this case.
57. In the light-of the above discussion, we hold that all the four appellants participated in the occurrence which resulted in the death of one person and injuries to to others.
10. With regard to the offence committed, the case does not involve any complicated question. All the four appellants having armed themselves with deadly weapons were in the at of taking forcible possession when Ghulam Haider deceased asked them not to do so. The latter being in possession of the land had the right to ask the appellants not to plough the land. On this; he was given to fatal blows on the head and his brothers were given several injuries with hatchets and dangs. Though the deceased was spared from being injured with the sharp sides of the hatchets, yet the other to injured were caused blows with the sharp sides of the hatchets. The fact that the deceased was given to heavy blows on the head which resulted in fractures-at several places shows that his assailants intended to cause such injuries to him which were sufficient in the ordinary, course of nature to cause death. This supposition is supported by the opinion given by Dr. Abdul Ghafoor P.
58. W. Therefore, the at which resulted m the death of Ghulam Haider deceased constitutes the offence of murder. As all the appellants parti--cipated in the occurrence and caused injuries with their respective weapons and did not spare the vital parts of their victims, therefore all of them acted in the furtherance of their common intention, which may well have been formed at the the of occurrence. And as already noticed, the intention was to cause such bodily injuries as were sufficient in the ordinary course of nature to cause death, therefore all the appellants are guilty under section 302/34, P. P. C.
11. As regards the sentence, the learned counsel for the appellants advanced the following reasons for lesser of the to sentences under section 302, P. P. C. They are-
(i) That Inayat and Sarwar appellants who are said to have caused head injuries to the deceased did not individually, cause more than one blow each to him, and Anwar appellant caused only an abrasion or, the scapular region of the deceased;
(ii) that all the injuries caused to Ghulam Rasul P. W. And his brother Sardar Khan proved to be simple in nature; (i.e) that wrong side of the hatchet was used for causing deceased and be was not giver. a single injury from the sharp-edged side of the hatchets;
(iv) that the initial intention of the appellants was not to kill the deceased or any body else but to take possession of the land;
(v) that it is evidenced that abuses were exchanged before the blows were actually given to the deceased and in a case like this, it is' not possible to ascertain with exactitude the sequence and the nature of the abuses which were exchanged; and
(vi) that though the eye-witnesses have attributed specific injuries to each one of the appellants qua the deceased and the to injured persons, yet in giving', the details of so many injuries the possibility cannot be excluded that some mistake may have been committed about anyone or more of the appellants who caused the injuries to the deceased. In this connection, the learned counsel also relied on the fact that before recording the F. I. R., the medico-legal reports of all the injured-were available to the complainant and the police officer who recorded the F. I. R.
59. Considering all the circumstances of this case, we feel that the capital punishment should. Not be awarded. Therefore, though finding all the appellants guilty under section 302/34, P. P. C., we set aside the sentences of death awarded to Inayat, Sarwar and Anwar appellants and instead sentence each one of them to transportation for life; and maintain the sentence of transportation for life awarded by the learned trial Judge to Rafiq appellant. The learned trial Judge had awarded the sentence of fine of Rs. 5,000 under section 302/34, P. P. C. To Rafiq appellant in order to bring his case qua sentence somewhat at par with the other three appellants who were awarded death sentences by him. As the sentences of those three appellants have also been reduced to transportation for life, therefore there is no justification for maintaining the sentence of fine on Rafiq appellant. We set it aside. The result is that all the four appellants shall suffer the sentence of transportation for life under section 302/34,. P. P. C. The sentence of three years' R. I. Awarded to all the appellants under section 324/34, P. P. C. Is 'also maintained. This sentence, however, shall run concurrently with the sentence of transportation for life.
60. The appeal is accepted only ink respect of sentence and to the extent noted above. The sentences of death awarded in this case are not confirmed.