Allah Ditta, Muhammad Akbar, Ali Ahmad and Ibrahim were tried by an Additional Sessions Judge of Sialkot, under section 302/34, P. P. C. For the murder of Lal Din deceased. The learned trial Judge, by his judg--ment dated 13th December, 1979. Convicted all the four accused under the said section and sentenced each of them to undergo life imprisonment and to pay a fine of Rs. 5,000 or in default thereof to suffer further simple imprisonment for three months. The fine, if realised, was ordered to be paid to the legal heirs of the deceased. The appeal (Cr. A. 22 of 1980) of the four convicts is now before me for disposal.
2. The brief facts of the case are that four months prior to the occur--rence, one Ghulam Haider Arain, resident of Rajian, who was dealing in cloth business, was residing in the house of Ali Ahmad accused in village Nawadeh. The said Ghulam Haider developed illicit intimacy with Msr. Kausar Parveen, the sister of Ali Ahmad accused with the. Result that she acquired ill repute in the village.
One month before the occurrence, Lal Din deceased, the brother of the complainant, told Ali Ahmad accused that as his sister had developed illicit intimacy, she should be married. Ali Ahmad accused took it ill. Fifteen to sixteen days prior to this occur--rence, Ali Ahmad accused complained to Sardar Khan complainant P. W. 6 that Lal Din deceased had levelled false allegations against his sister and its consequences would be bad. On the day of occurrence, i.e. 2nd March, 1974, at about chahwela, Lal Din deceased alongwith Riaz P. W. 7 were carrying the implements of tube-well towards Chawinda. The accused who are related inter se and belong to the same party, while .Armed with lathis, were sitting at the adjacent well outside the haveli of Ali Ahmad accused. When Lal Din deceased and Riaz P. W. 7 were about to pass by them, Ali Ahmad accused raised Lalkara and shouted that they (Lal Din and Riaz) should be done to death. On this, all the accused attacked the complainant party. Ali Ahmad accused caught hold of the deceased in a japha. Muhammad Akbar accused gave a blow with his laths. Lal Din deceased, in order to ward off the blow, raised his hand, with the result that the blow hit the left hand of the deceased.
Then Allah Ditta accused gave a blow with full force on the top of the head of Lal Din deceased. On this, Lal Din deceased fell down. Muhammad Akbar accused again gave a laths blow on the left leg.
On this Riaz P. W. Raised alarm and stepped forward in order to save the life of Lal Din deceased. On this, Muhammad Ibrahim accused gave a lathi blow on his head and Akbar accused gave a laths blow on his left ulna. Riaz P. W. 7 raised alarm. Sardar Khan complainant P.-W. 6 alongwith Sana Ullah (given up P. W.) were coming to the village from the northern aide and saw the occurrence and reached the spot: , The accused left the place of occurrence towards the village. Lal Din deceased was being taken to the hospital, but in the way he died near the dera of Ghulam Ali in the area of village, Chahur. Sardar Khan complainant P. W. 6 was proceeding towards the police station for lodging the report, but in the way he met Muhammad Arshad S.-I. P. W. 9 at bus stand Zafarwal, who was present there in connection with patrol duty, before whom he gave his statemeat Exh. P. C. Which was recorded at t-15 p. m. On the basis of the said statement, formal F. I.
R. Exh. P. C. 1 was recorded at Police Station Zafarwal at 1-30 p. m. By Muhammad Ashraf H. C. P. W.
5. After recording the F.
1. R. Muhammad Arshad S.-I. P. W. 9 went to the place where the dead body of Lal Din deceased was lying. After prepar--ing the necessary papers, he sent the dead body for autopsy. He then proceeded to the place of occurrence, where he took into possession blood-- stained earth, vide memo. Exh. P. G.
3. On 3rd March, 1974 at 9-30 a.m. Dr. Abdul Jabbar Khan P. W. 10 conducted the post-mortem examination on the dead body of Lal Din deceased and found three contusions on the temporal /occipital region of the head, the fingers of the left hand and the right upper arm and .Two abrasions on the left knee joint and right upper arm. There was fracture of the right temporal/occipital bone and the underling membranes and brain was damaged and congested.
Death was' due to shock and haemorrhage as a result of the fracture of the skull which was sufficient to cause death in the ordinary course of nature. Excepting the injuries on the skull and fingers, which were grievous, the rest were simple. All the injuries were caused by blunt weapon.
The time between injuries and death was within half an hour and that between death and post- mortem examination. Within twenty-four hours.
The same day, Muhammad Riaz P. W. 7 was also examined by the same doctor who found three contusions on his right forehead and the anterior and posterior aspects of his left leg. All the injuries were simple and caused with blunt weapon within twenty-four hours.
4. On 6th March, 1974 Ali Ahmad, Muhammad Ibrahim and Muhammad Akbar accused were arrested by Muhammad Arshad S.-I. P. W.
9. Muhammad Akbar and Muhammad Ibrahim accused produced lathis P. 5 and P. 6 before the police officer, which he took into possession vide metros.
Exhs. P. D. And P. E., respectively. These and recoveries were witnessed by Sardar Khan P. W. 6, Muhammad Arshad-S.-I. P. W. 9 and Mehnga (given up P. W.).
5. On 8th March, 1974 Allah Ditta accused was attested by Muhammad Arshad S.-I. P. W. 9.
6. On 12th March, 1974 Allah Ditta accused led to the recovery of lathi P. 7 from his Kothri which was taken into possession vide memo. Ex. P. F. The said recovery was witnessed by the same persons who . Had witnessed the earlier two recoveries.
7. After completing the necessary investigation, the challan against all the four accused was sent up.
8. At the trial, all the accused denied the accusations that were levelled against them, as also the recoveries effected at their instance. All of them imputed the case against them to previous enmity with the complainant party and stated that they had been falsely involved.
9. The learned trial. Judge, relying upon the motive, the ocular account furnished by Sardar Khan P.
W. 6 and Muhammad Riaz P. W. 7 and the medical evidence, convicted and sentenced the four accused, as stated above.
10. I have heard the arguments of the learned counsel for the appellants and the State and have also perused the record. The evidence as regards the motive is furnished by Sardar Khan P. W. 6.
According to his testimony, about four months prior to the occurrence, one Ghulam Haider a resident of village Rajian who was dealing in cloth, started living in the house of Ali Ahmad appellant. The said Ghulam Haider developed illicit relations with Mst. Kausar Parveen, the sister of Ali Ahmad appellant. A month before the occurrence, Lal Din deceased who was the younger brother of Sardar Khan P. W. 6, told Ali Ahmad appellant that his sister had developed illicit relations with Ghulam Haider and be -should get her married and turn out Ghulam Haider from his house.
About 10/15 days thereafter, Ali Ahmad appellant met Sardar Khan P. W. 6 and complained to him that Lal Din deceased had made false allegations against his sister, Mst. Kausar Parveen and its consequences would be bad. In pursuance to this threat, the four appellants, ouly armad with lathis, are alleged to have attacked the deceased and Riaz P. W. 7 on the day of occurrence, when they were passing by near the haveli of Ali Ahmad appellant. There is nothing in the evidence to show that Allah Ditta appellant and his son Akbar appellant are in any way related to Ibrahim or Ali Ahmad appellants or that the latter two are related inter se, but the record of the committing Court shows that Sardar Khan P. W. 6 stated before the committing Magistrate that his sister Mst, Kausar Parveen had married the bhanju of Muhammad Ibrahim appellant. However, for the purposes of this case, it is clear that Allah Ditta and his son Muhammad Akbar appellant had no motive to join Ali Ahmad and Muhammad Ibrahim appellants is any venture to murder or cause any injury to Lal Din deceased or any of his relatives. Even otherwise, assuming that the story as regards the motive, as set up by Sardar Khan P. W. 6,, is true, it would appear that at best Ali Ahmad and Ibrahim appellants had a motive to cause grievous injuries to Lal Din deceased and not go to the extent of joining hands to cause his murder or make any attempt 'in that direction.
11. The evidence as regards the occurrence is furnished by' Sardar Khan P. W. 6, Muhammad Raiz P.
W. 7 and Muhammad Sharif P. W.
8. Sardar Khan P. W. 6 is 'the brother of the deceased, Muhammad Riaz P. W. 7 is the maternal nephew of the deceased and Muhammad Sharif P. W. 8 is the paternal- cousin of the deceased. Muhammad Sharif P: W. 8 was disbelieved by the trial Court and his evidence is not being pressed into service by the State counsel. The learned counsel for the State does not accept his presence at the time of occurrence before me. His evidence, therefore, may safely be discarded. Muhammad Riaz P. W. 7 was accompanying Lal Din deceased on the day of occurrence from village Nawadey to village Chawinda, where they were going to get the governor and the automiser of their tube--well repaired. When they reached near the haveli of Ali Ahmad appellant, the four appellants, armed with lathis, who were sitting in the haveli, attacked them. In this attack launched by the appellants, be also suffered injuries. He is, therefore, a natural witness.
Sardar Khan P. W. 6 was fortuitously returning with Sana Ullah (given up P. W.) from the dera of Barkat and saw the occurrence. Sana Ullah. (given up P. W.) had come to the house of Sardar Khan P. W. 6 and taken him to the house of Barkat in order to borrow some oil, but not finding Barkat, both were returning and on the way saw the occurrence. Since the occurrence took place on a path frequented by passerby, Sardar Khan P. W. 6 who was passing by that path was a natural witness.
The testimony of both these eye-witnesses is consistent as regards the occurrence, which brief account has already been given in para. 2 above and need not be repeated. Sardar Khan P. W. 6, in cross-examination, stated that one Mst. Hamida Bibi was the daughter of his real uncle Mehnga (given up P. W.) and that Muhammad Aslam brother of Muhammad Akbar appellant bad attempted to outrage the modesty of the said Mst. Hamida Bibi on 5th October, 1970, which incident he and Sana Ullah (given up P. W.) had witnessed. He also admitted that Mst. Hamida Bibi had got a case registered against the said Muhammad Aslam under section 354, P. P. C., that he had appeared as a P. W. Against Muhammad Aslam in that case and that the said Muhammad Aslam was acquitted. He also stated that Lal Din deceased and Muhammad Riaz P. W. 7 threw the governor and the automiser, which they were carrying, at the time they were attacked. He also admitted that he and Lal Din deceased were living separately that the deceased and Muhammad Riaz P. W. Had not asked him to see them before they proceeded to Chawinda and that it was just by chance that he Sana Ullah (given up P. W.) had reached the place of occurrence and saw the occurrence. He denied the suggestion that he and Muhammad Riaz P. W. 7 never saw the occurrence, that Muhammad Riaz P. W. 7 never received any injury during the occurrence that he received information of the death of his brother after the occurrence, that he then made the arrangement to take the deceased to Zaffarwal and that the injuries on Muhammad Riaz P. W. 7 were fabricated in order to make him an eye-witness. Muhammad Riaz P. W. 7 in cross-exami-- nation stated that the police arrived at the spot on the day of occurrence at peshiwela, that he had shown his injuries to the police when they arrived there, but he was not medically examined by the doctor at Narowal till the next day. He denied the suggestion that be was not injured and that his injuries were fabricated. The ocular testimony is adversely commented upon by the learned counsel for the appellants on a number of grounds. First, that the occur--rence was not witnessed by any of the eye-witnesses and both Sardar Khan P.W. 6 and Muhammad Riaz P.W. 7 are planted wit--nesses. In this connection it is submitted that the alleged governor and the automiser of the tube-well which the deceased and Muhammad Riaz P.W. 7 were carrying and which they had thrown at the spot were never recovered, It was also submitted that had Muhammad Riaz P.W. 7 suffered any injuries during the occurrence, as alleged, he would have been straight away sent for medical examination the same day and not on the next day, as was done. Further, according to Sardar Khan P. W. 6, the appellants were sitting outside the haveli before the attack was launched, but -according to Muhammad Riaz P. W. 7, they were sitting inside the haveli. Second, the story as presented, is unnatural and untrue. If Ali Ahmad appellant was annoyed at the deceased's behaviour for disgracing his sister, he would have been the first to attack the deceased or his com- -panion, but he is only attributed to have held the deceased in a japha, whilst his companions attacked him with lathis. It is also submitted that if the deceased had been held in a japha, as alleged, the deceased would not have suffered injuries on his. Knee, upper arms and hands. Third, that Allah Ditta and Muhammad Akbar appellants have been falsely implicated as Muhammad Aslam, the son of Allah Ditta appellant, had abducted Msf. Hamida Bibi., the cousin of the deceased and Sardar Khan P. W. 6 and Muhammad Sharif P. W. 8 and the eye-witnesses have, therefore, falsely added them. In this connection it was also submitted that Mst. Kausar Parveen had been married to the Bhanja of Ibrahim appellant, about 8/9 days prior to the occurrence and the motive did not even connect Allah Ditta and Muhammad Akbar appel--lants with the crime in question. It was also submitted that Allah Ditta and Akbar appellants at the time of investigation had pleaded alibi before the D. S. P. Who had come to investigate the case, these two appel--lants had asked the complainant party or any independent person of the village who had seen the occurrence to state on oath on the Holy Quran that they had participated in the occurrence, but the complainant party did not agree to this suggestion, that thereafter by agreement of the two oppos--ing parties, the statements of three persons who had seen the occurrence were recorded which showed that the occurrence had occurred in a different manner and that one of the said three persons had excluded the' presence of Allah Ditta and Akbar appellants. In these circumstances, it. Was submitted that corroboration as regards the participation of Allah Ditta and Muhammad Akbar appellants was necessary in the case. As regards the first contention raised by the learned counsel for the appellants the arguments are specious. Muhammad Riaz P. W. 7 suffered injuries which were found by the doctor to be contemporaneous in point of time with the occurrence. It cannot, therefore, be said that he was not present at the spot. The name of Muhammad Riaz P. W. 7 finds mention in the F. I. R. Which was recorded promptly., In these circumstances, the presence of the two eye-witnesses at the spot cannot be doubted. As already held earlier, they were natural witnesses. The non-recovery of.4 the governor and the automiser from the place of occurrence or late medical examination of Muhammad Riaz P. W. 7 do not, therefore, adversely affect the case. As regards the second contention raised by the. Learned counsel for the appellants, the same has no foundation. It is not necessary that a person who has the main grievance should originate the attack himself. He could prevail upon others to do the same for him. As regards Ali Ahmad appellant holding the deceased in a japha, the story does not appear improbable. A person held in a japha could have his arms free and if an attack is launched on him, he could try and ward it off with his bands, as was done in the present case, and suffer injuries on his upper arm and the fingers of his palm. As regards the third and the last contention raised by the learned counsel for the appellants, the same is not without significance. The marriage of Mst. Kausar Parveen to the bhanja of Ibrahim appellant is not proved from the evidence at the trial, but appears from the evidence of Sardar Khan furnished in the committing Court, which cannot be taken into consideration here. Further, the ziminis cannot be taken into consideration in this case. The learned counsel for the appellants has himself mentioned that his case was badly conducted and the Investigating Officer was not put relevant questions to bring out important matters which took place before the D. S. P. I agree with this observation. Perhaps the learned counsel was relying too much on reputation, instead of labour. Be that as it may, it cannot be denied that Allah Ditto and Muhammad 4kbar appellants, not being related to or friendly with or partisans of Ali Ahmad and Ibrahim appellants, had no motive to attack the deceased or his companions. No explanation is to be found in the evidence why they joined with the others. It cannot be denied that Lal Din deceased, Sardar Khan P. W. 6 and Muhammad Sharif P. W. 8 were inimical to Allah Ditta and Mohammad Akbar appellants, in view of the abduction by Muhammad Aslam of Mst. Hamida Bibi, in which case Sardar Khan P. W. 6 and Sana Ullah (given up P. W.) were also witnesses against Muhammad Aslam. In these circumstances, even assuming that Sardar Khan P. W. 6 and Muhammad Riaz P. W. 7 were present at and saw the occurrence, for the safe dispensation of justice, corroboration as against Allah Ditto and Muhammad Akbar appellants in particular would be required. This, however, does not mean that any corroboration is required against Ali Ahmad and Ibrahim appellants against whom the eye-witnesses have no enmity or animosity. Taking all circumstances into consideration, I hold that Sardar Khan P. W. 6 and Muhammad Riaz P. W. 7 were present and saw the occurrence and that they are independent witnesses qua Ali Ahmad and Ibrahim appellants and, therefore, their testimony does not require any corroboration with regard to their participation, but as regards Allah Ditta and Muhammad Akbar appellants, the said witnesses are interested and inimical to them and corroboration with regard to the participation of Allah Ditto and Muhammad Akbar appellants is necessary for the purposes of safe dis--pensation of justice.
12. The recovery of dangs P. 5 and P. 7 at the instance of Muhammad Akbar and Allah Ditta appellants has already been disbelieved .By the learned trial Judge on the ground that they were not found to be stained with human blood and,. Therefore, they do not connect the appellants with the crime. The medical testimony furnished by Dr. Abdul Jabbar Khan P. W. 10 does not connect the said two appellants with the crime, other than merely suggesting that from the number and nature of the injuries found on the dead body of Lal Din deceased and the person of Muhammad Riaz P. W.
7, that about two to four assailants armed with dangs could have inflicted the said injuries.
13. In view of absence of arty corroboration as regards the partici--pation of Allah Ditta and Muhammad Akbar appellants in the crime in instance, they are entitled to the benefit of doubt. As regards the participation of Ali Ahmad and Ibrahim appellants, the ocular testimony is sufficient against them and requires no corroboration. Their participa--tion in the occurrence, therefore, stands proved.
14. The only question that now remains to be decided is that relating to the offence committed by Ali Ahmad and Ibrahim appellants. In this connection, as already held by me above, the motive does not appear to be one where these appellants desired to murder Lal Din deceased. At best, the appellants or their companions were motivated to give a good beating to the deceased. The testimony of Dr. Abdul, Jabbar Khan P. W. 10 shows that the deceased suffered one contusion each on his head, upper arm and the fingers of his left palm and one abrasion each on his left knee -- joint and right upper arm and Muhammad Riaz P. W. 7 suffered one contusion each on his forehead and interior and posterior sides of his left leg. Excepting the contusion on the head, the other injuries on the deceased were simple and caused by blunt weapon. All the three injuries on Muhammad Riaz P. W. 7 were also simple and by blunt weapon. The major brunt of the injuries on the deceased and Muhammad Riaz P.W. 7 were on the non-vital parts of the body. Taking all circumstances into consideration, it appears that the common object of the appellants was to cause grievous hurt. However, the assailant who caused the grievous injury on the deceased exceeded the common intention and would, therefore, be liable for his own independent act.
According to the testimony of the eye-witnesses, Allah Ditta appellant is imputed to have caused the fatal injury on the head. He alone would, therefore, be liable for that injury. As regards the other assailants, whoever they were, who were united in no higher intention than to cause grievous hurt, would be liable under section 325/34, P.P.C. For grievous hurt caused to the deceased. In these circumstances, Ali Ahmad and Ibrahim appellants are liable under section 325/34, P.P.C. For causing grievous hurt to Lal Din deceased and under section 323/34, P.P.C. For causing simple injuries to Muhammad Riaz P. W. 7.
For the foregoing reasons, the convictions and sentences of Allah Ditta and Muhammad Akbar appellants are hereby set aside. They shall be set at liberty forthwith, if not required in any other case. Fines, if any recovered from them, shall be refunded to them. The convictions and sentences of Ali Ahmad and Ibrahim appellants under section 302/34, P.P.C. E are set aside and replaced by that under section 325/34, P:P.C. And both the appellants shall suffer seven years' rigorous imprisonment each with a fine of Rupees Five Thousand (Rs. 5,000), each or in default thereof to suffer further rigorous imprisonment for three months each. The fines, if realised, shall be paid to the legal heirs of the deceased as compensation under section 544-A, Cr. P.C. Since no charge was framed against the appellants for injuries suffered by Muhammad Riaz P.W. 7, no conviction is recorded in this respect. In view of section 382-B, Cr. P.C., the detention undergone by Ali Ahmad and Ibrahim appellants shall be treated as detention undergone by them as convicts. This appeal, therefore, partly succeeds in terms of alteration of convictions and reduction of sentences, as stated above.