MIAN BURHANUDDIN KHAN, J.-This was a Jail Petition filed by Barkat A.I and barred by time by 20 days but as it involved death sentence, the delay is condoned and the petition is converted into criminal Appeal.
Appellant Barkat A.I, along-with Hakim A.I and Tufail were tried by the learned Sessions Judge, Bahawalnqgar under section 302 read with section 34, P. P. C. For causing the murder of Hashim (deceased). Barkat A.I was con--victed and sentenced to death subject to confirmation by the High Court. He was also sentenced to pay a fine of Rs. 1,000 or in default to suffer R. I. For one year.
Hakim A.I and Tufail were sentenced to imprisonment for life under section 302 read with section 34, P. P. C. And a fine of Rs. 1,000 each or in default, to suffer R. I. For one year. Amount of fine, if recovered, was ordered to be paid to the heirs of the deceased under section 544-A, Cr. P. C,
3. The convicts filed an appeal which was heard by the learned Judges of the Lahore High Court, Bahawalpur Bench which was dismissed and death sentence of Barkat A.I was confirmed vide High Court .Judgment dated 8-6-1981. Tufail was exonerated of the charges and was acquitted.
4. According to the prosecution Hashim A.I, deceased, along-with his son Muhammad Aslam and brother Izzat Beg started thrashing wheat crop in the thrashing-floor on 23-5-1978 from morning time. At about noon Barkat A.I, appellant approached him and told him that since he was going to Basti Araian, he (deceased Hashim) should accompany him to get his plough pre--pared from him. The deceased, therefore, accompanied Barkal A.I and entered his shop, while Muhammad Aslam and Izzat Beg finished their work and also followed the deceased. When they reached near the shop of Barkat A.I, appellant, they saw him with iron wadhan, Hakim A.I, accused, holding an iron tesa (axe) and Tufail, the acquitted accused, was holding the accused and the first mentioned two accused dealt blows to Hashim deceased, with their respec--tive weapons. The deceased raised alarm which attracted Muhammad Luqman, P. W. Whereupon Hashim (deceased) was left in the shop in wounded condition and the accused ran away.
5. The motive for the offence as stated, is said to be a dispute over the thrashing of wheat belonging to one Khurshid. The accused appellant wanted to get the wheat for thrashing and they had asked the deceased not to thrash the wheat as it was their right to do so.
6. Muhammad Turaiz, P. W. Left for the police station when Qazi Najmuddin, S. 1. P. W. 12 met him on his way, near the bus stand Minchin--abad where he recorded the report Exh. P. C. After recording the report the S. H. O. Went to the spot. He collected blood-stained earth and wadhan P. 4 which was also blood-stained and took them into possession vide Memo. Exh. P. G. And sealed them into parcels. He also took into possession a pair of shoes P. 7 belonging to Hashim, deceased, and a plough consisting of three pieces Exh. P. 8/1.3 vide Memo. Exh. P. K. He prepared the injury statement Exh. P. D. And Inquest report Exh. P. E. And sent the dead body for post-mortem examination to the mortuary. He arrested the accused on 24-5-1978. Barkat A.I, appellant, was wearing blood-stained chaddar P. 6 which was taken into possession vide Memo. Exh. P. J. Hakim A.I, accused, while in custody, led to the recovery of tesa P. 5 from his kotha which. Was taken into possession vide, Memo. Exh. P. M% and sealed into a parcel. He prepared the site plan Exh. P. B. With the notes correctly and also got duplicate site plan P. 1 prepared by the Patwari. Post-mortem examination revealed the deceased having sustained the following injuries
(1) One lacerated wound on left temporal aspect of scalp medially situated along midline of 6 cm x 1 cm.
(2) a lacerated wound 4 cm away from injury No. 1 of size 4 cm X 1 cm on left temporal aspect of scalp.
(3) a lacerated wound on left temporal aspect of scalp 6 cm away from injury No. 1 of size 6 cm x 1.1/2 cm.
(4) an incised wound in front of right ear of size 3 cm x 1.1/2 cm x going deep in cavity margins of wounds are even and ends are pointed.
(5) one incised wound on right mandible 2 cm x 1 cm going deep into bone.
(6) lobule alongwith pinna of right ear lacerated through and through in size 4 cm x 1 cm.
(7) Pinna of left ear on upper brader was lacerated.
(8) Contused wound of oval shape in front of left ear spreading in 4 cm circumference.
(9) Tip of right shoulder contused in area of 6 cm x 2 cm. According to Dr. Fayyaz Ahmad these wounds were caused with sharp-edged and blunt weapons. Injuries (1) to (3) were found grievous and injuries (4) and (5) were caused with sharp-edged weapons and were sufficient collectively to cause death in the ordinary course of nature as these injuries had caused damage to the brain. He further stated that injuries Nos. 1 to 3 individually and injuries 4 to 9 collectively had proved fatal.
7. Muhammad Turaiz, P. W. 7 gave a resume of the occurrence which he had learnt from Aslam, Izzat Beg and Luqman who were present with the deceased, while he (deceased) was thrashing the wheat of Khurshid. He also furnished the motive for the crime as stated earlier in the foregoing para--graph.
8. Muhammad Luqman, P. W. 3 stated that on hearing alarm from the Jhuggi of Barkat tarkhan, accused, he rushed in the direction of Jhuggi and entered it and saw Barkat A.I, Hakim A.I and Tufail present, and also Aslam and Izzat Beg P. Ws. The accused were dealing blows to Hashim deceased.
Barkat had a wadhan, Hakim had a tesa. On receiving blows from the two accused, the deceased fell to the ground and that in his presence Barkat accused threw the hammer on the ground while Hakim A.I ran away with the tesa and so did Tufail the acquitted accused.
9. Muhammad Turaiz, P. W. 7 proceeded to lodge the report. In his presence various articles were taken into possession by the investigating Officer and he attested the Memos. Muhammad Aslarn, P. W. 10 and Izzat Baig, P. W. 9 also gave ocular account of the occurrence. The accused were examined. They pleaded not guilty but produced no defence.
10. It was contended on behalf of the appellant that the prosecution evidence is highly interested Muhammad Turaiz and Izzat Beg being brothers and Muhammad Aslam being the son of deceased Hashim. We have considered this argument and would say that there is no previous enmity between I the parties and thus there was no reason for Muhammad Turaiz, lzzat Beg and Muhammad Aslam, P. Ws. To depose falsely against the appellants for the murder of Hashim.
Besides this, the prosecution case is supported by the evidence of Muhammad Luqman, P. W. 8 who is mentioned in the F. I. R. As one of the witnesses of the crime. He was examined at the trial at length but nothing came out in the examination to discredit his testimony. He is neither related to the deceased nor he has got any enmity with the appellants Barkat A.I and his co-accused Hakam A.I. According to Luqman, P. W. He was working at the relevant time at a place lying 20(25 karams away from the place of occurrence, when he beard the uproar. He ran towards the Jhuggi' of the accused-appellant and saw Barkat A.I accused, holding a wadhan and Hakam Eli having a tesa, and they were dealing blows to Hashim with their, respective weapons. Simultaneously with him the other Muhammad Aslam and Izzat Beg reached the spot who were witnesses namely raising alarm. Therefore, no doubt is left in our mind regarding the guilt of the accused Barkat A.I and his co-accused Hakam A.I.
11. Dr. Fayyaz Ahmad, P. W: 5 also found that two types of injuries were caused with blunt heavy weapon and sharp-edged weapon like hammer and tesa. Muhammad Turaiz, P. W. 7, lodged the report immediately to the Investigating Officer Qazi Najmuddin at about 3.45 p.m. Without any loss of time.
12. It was further contended that motive furnished by the prosecution is flimsy. Over and above, the deceased who, according to the prosecution, had a dispute over the thrashing of wheat crop of Khurshid, would be the last person to accompany the accused to his jhuggi. No doubt this motive has been mentioned in the F. I. R. Exh. P C/1 but it would not appeal to reason that this lone fact would lead to the murder of the deceased by the appellants Barkat A.I and Hakam A.I. Thus we consider that there is some evidence which has been concealed by the prosecution regarding the incident, before the accused actually started giving blows to the deceased. As such we are of the view that the extreme penalty of death is not called for in this case. We would, therefore, alter the death sentence of Barkat A.I to that of imprisonment for life with a fine of Rs. 10,000 (rupees ten thousand only or in default, to undergo R. I. For five years. The amount of fine, if recovered, shall be paid to the heirs of the deceased as compensation.
13. We now take up the Jail Petition of co-accused Hakam A.I. He has been awarded imprisonment for life and a fine of Rs. 1,000. His complicity in the crime is established by the testimony of the eye- witnesses. We find his appeal to be without merit and the same is accordingly dis--missed.