RUSTAM S. SIDHWA, J.-Haji, Allah Ditta, Yasin, Ghulam Rasool, Nazoo, Muhammad and Dillu were tried by an Additional Sessions Judge of Multan under section 302;149, P. P. C. For the murder of Allah Ditta deceased and under section 148, P. P. C. For committing rioting. The learned trial Judge by his judgment dated 25th April, 1979, convicted Haji, Allah Ditta and Yasin under section 302/34, P P C for the murder of Allah Ditta deceased and sentenced Haji and Allah Ditta to death, subject t o confirmation by this Court, and to pay a fine of Rupees Five Thousand (Rs. 5,000) each or in default thereof to suffer further rigorous imprisonment for one year each and Yasin accused to life imprisonment with a fine of Rupees one thousand (Rs. 1,000) or in default to further udergo rigorous imprisonment for six months and acquitted the remaining accused of the charge. Fine if realized, was ordered to be paid to the heirs of Allah Ditta, deceased, as compensation. The joint appeal (Cr.
A 584 of 1979) preferred by the three convicts against their conviction and sentence and the reference. (M. R. 206 of 1979) submitted by the learned trial Judge for the confirmation of the death sentences awarded to two convicts, are now both before us for disposal.
2. The brief facts of the case are that Allah Ditta, deceased, had installed a tubeweli in Mauza Kundi Wala which he was shifting to Basti Babranwah. On 7th May, 1978 at about 5-00 p m. Allah Ditta, deceased, Muhammad Ishaq complainant P. W. 8 and Hafeez-ur-Rehman P. W. 10 went to Mauza Kundi to see the engine of the tubewell for the purposes of shifting the same. When they reached there, the seven accused, namely, Ghulam Rasool and Yaseen who were armed with rifles, Nazoo and Muhammad, who were armed with pistols, Dillu, who was armed with a gun, and Haji and Allah Ditta, who were armed with chhuris, came out of the house of Muhammad Yasin, accused, firing in the air. On seeing them, Muhammad Ishaq complainant P W 8, along--with his. Companions, rushed northwards toward Chah Babranwali, Muhammad Ishaq .P W. 8, and Hateez-ur-Rehman P.
W. 10 concealed themselves in a watercourse, whereas Allah Ditta deceased ran towards the Bhaini of Rahimyar Khan P. W. 9, who also came out of his Bhaini. Meanwhile, Yaseen, accused fired at Allah Ditta, deceased, which bit him on his left leg and he fell on the ground. In the meantime all the accused reached there and inflicted injuries on his person. Accused Allah Ditta inflicted chhuri blow on the neck of Allah Ditta, deceased, and thereafter Haji, accused, inflicted chhuri blows on the neck of Allah Ditta, deceased. Then the accused ran away with their respective weapons, after murdering Allah Ditta, deceased. The motive behind the occurrence was that one year prior to the occurrence, brother of Ghulam Rasool, accused, namely, Jindwadda, was murdered by Saddique, son of Allah Ditta deceased, Khalil, nephew of Allah Ditta deceased, and Ashiq, a relative of Allah Ditta deceased. Muhammad IshaqP. W. 8 then proceeded to Police Station Lodhran where he lodged F I R Exh. P. D. On 6-30 p. m., which was recorded by Ali Muhammad S. 1. P. W. 14.
3. After recording the F. I. R., the investigating officer proceeded to the spot, from where he recovered blood-stained earth, which be took into possession vide memo. P. E. After preparing the necessary papers, he sent the dead body of the deceased for post-mortem examination.
4. Next morning on 8th May, 1978 the investigating officer recovered two crime empties from the spot, which he took into possession vide memo. P G in the presence of Rahimyar Khan P. W. 9, Hafeez-ur-Rehman P W. 10 and Ali Muhammad S. I. P. W. 14.
5. On the same day, i.e. 8th May, 1978 at 9-00 a. m. Dr. Abdul Ghaffar P. W. 5 conducted the post- mortem examination on the dead body of Allah Ditta deceased and found a big cut 1 --" x 8 --" x 2 --" on the front and left side of the neck, cutting all the structure of the neck up to the third cervical vertebra, three multiple incised wounds on the left thumb and back of left hand, a simple contusion on the left shoulder and a grievous fire-arm wound 8 --" x 4 --" x 3" on the front of the left leg, just below the knee joint, fracturing the bones of the leg into multiple pieces. There was smell of burning flesh from the fire-arm wound and the entrance and exit of the wounds were united. Cause of death was due to haemorrhage and shock caused collectively by all the injuries which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. Time between injuries and death was immediate and that between death and post-mortem about 12 to 24 hours.
6. On 17th May, 1978 all the seven accused were arrested by Ali Muhammad S. I. P. W. 14.
7. On 19th May, 1978 Haji, accused, led to the recovery of a blood--stained chhuri P. 3, bloodstained kurta P. 4 and a blood-stained chaddar P 5 from a bharoli in the courtyard of his house, which was taken into possession by the police vide memo. P H. Allah Ditta, accused, also led to the recovery of a blood-stained chhuri P. 6, blood-stained kurta P. 7 and blood-stained chaddar P. 8, from the roof of his chappar which was taken into possession by the police vide memo. P. K. All these recoveries were witnessed by Musa Y. W. 12, Ali Muhammad S. I. P. W. 14, and Allah Yar (given up P. W.).
8. On 26th May, 1978, Yaseen, accused, led to the recovery of a rifle P. 9 and six live rounds from a place in Mauza Bakhiwala, lying buried underneath the ground, which the police took into possession vide Memo. P. M. Nazoo, accused, also led to the recovery of a pistol P. 11 from underneath a hay stack in his khola which the police took into possession vide Memo. P. N. All these recoveries were witnessed by Noor Ahmad P. W. 13, Ali Muhammad S. 1. P. W. 14 and. Fazal Ahmed (given up P. W.).
9. The blood-stained earth recovered from the spot and the blood--stained chhuris and clothes recovered at the instance of Haji and Allah Ditta, accused, were found to be stained with human blood by the Chemical Examiner and the Serologist. The two crime empties recovered from the spot were found to match with the rifle P. 9 recovered at the instance of Yaseen, accused, by the fire-arm expert. After completing the necessary investigation, the challan against the accused was sent up.
10. At the trial, the prosecution produced Muhammad Ishaq P. W. 8 to prove the motive, the said witness and Rahimyar Khan P. W. 9 and Hafeez-ur-Rehman P. W. 10 in proof of the ocular account, Rahimyar Khan P. W. 9 Hafeez-ur-Rehman P. W. 10, Musa P. W. 12, Noor Ahmad P. W. 13 and Ali Muhammad S. 1. P. W. 14 in support of the recoveries and Dr. Abdul Ghaffar P. W. 5 to corroborate the medical testimony.
11. All the accused denied the accusations that were levelled against them and imputed their false involvement to enmity. Haji, Yaseen and Allah Ditta, accused, admitted that Siddique, son of Allah Ditta deceased, and Khalil, nephew of Allah Ditta deceased, had murdered Jindwadda, brother of Ghulam Rasool co-accused, but denied that he bore any grudge against the deceased on that account as the accused in that case were challaned. Haji accused, also stated in this statement under section 342, Cr. P. C. That his co-accused Allah Ditta, Yaseen and Dillu were eye-witnesses in the case against Siddique and Khalil relating to the murder of Jindwadda and that as the murder of Allah Ditta, deceased, had not been witnessed by anybody, he and his co-accused were involved in the present case on suspicion after con--sultation and deliberation, in order to put pressure upon them to secure the acquittal of Siddique and Khalil. He also stated that the complainant party succeeded in their mission, they arranged a compromise with them and secured the acquittal of Siddique, Khalil and Muhammad Ashiq from the Court of Mr. Anayat Ullah Cheema on 16th January, 1979, but the complainant party had now backed out from their terms of compromise and had given evidence against them. He produced the judgment Exh. DD of Mr. Inayat Ullah Cheema, Additional Sessions Judge, dated 16th January, 1979.
12. The learned trial Judge, relying upon the motive, the ocular account qua the participation of Haji, Allah Ditta and Yaseen, accused, the recoveries effected at their instance and the medical testimony, convicted and sentenced Haji, Allah Ditta and Yaseen, accused, and acquitted the rest, as stated in para. 1 above.
13. We 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 Muhammad Ishaq P.
W.
8. The particulars as regards the motive have already been given by us in para. 2 above and need not be repeated. The motive is also admitted by the present three appellants in their statements under section 342, Cr. P. C. In. These circumstances, the motive stands established definitely against the said appellants, if not against some of the other co-accused also who have been acquitted.
14. The ocular account in the case is furnished by Muhammad Ishaq P. W. 8, Rahimyar Khan P. W. 9, and Hafeez-ur-Rehman P. W.
10. All three are the brothers-in-law of the deceased, being the brothers. Of his three different wives. However, it cannot be denied that Muhammad Ishaq P. W. 8 and Hafeez-ur-Rehman P. W. 10, were in company with Allah Ditta, deceased, at the relevant time, as they had gone to Mauza Kundi Wala to see the dismantled machinery of the deceased's tubewell which was there and which had to be shifted to Chah Babranwali. Rahimyar Khan P. W. 9 is also a natural witness, for when he heard the gun report from the side of the tubewell of Allah Ditta, deceased, and come out of his house, he saw the occurrence right before his eyes and the deceased being done to death by the three appellants. The Bhaini of Muhammad Ishaq P. W. 8, is at a distance of one square from the place of occurrence where Allah Ditta, deceased, also resides.
Hafeez-ur---Rehman P W. 10, resides at a distance of three killas from the Bhaini of the deceased and Muhammad Ishaq P. W.
8. Rahimyar Khan P. W. 9, resides at a distance of 11 squares from the Bhaini of the deceased and Muhammad Ishaq P. W.
8. The evidence of the three witnesses is consistent as regards the part played by the three appellants in committing the murder of Allah Ditta, deceased. However, each of the three witnesses exonerated the four acquitted accused from participation in the crime, by stating that they came to the spot after the occurrence and did not inflict any injury to the deceased. In view of this admission, learned counsel for the appellants has drawn our attention to the principle of "falsus in uno falsus in omnibus" with a view to have the testimony of the eye-witnesses totally discarded, qua the present appellants. It must be here stated that the said eye-witnesses have not been disbelieved by th _A_ trial Judge qua the said four acquitted accused, but rather have been given the credit for making truthful clarifications and thus placing the case of the acquitted accused out of the reach of culpability. What appears is that all the accused, armed as stated in, para. 2 above, first emerged from the house of Yaseen and somebody fired in the air. Thereafter, they pursued the complainant party and a few killas away the three appellants murdered Allah Ditta, deceased. In cross-examination the witnesses admitted that the four acquitted accused came to the spot a little later and did not inflict any injury on the deceased's person. In view of this truthful position taken up by the eye-witnesses, the four acquitted accused were exonerated of the charge. In these circumstances, it cannot be said that the three witnesses were disbelieved quo the four acquitted accused and that, therefore their evidence should not be accepted without corroboration. Though the three eye-witnesses are related to the deceased, but none has any direct enmity with any of the appellants. Though Siddique, one of the sons of Allah Ditta deceased, was involved in the murder of Jindwadda, but the evidence does not show which of the three eye-witnesses happens to be the maternal uncle of the said Siddique, but assuming one of them is, the other two would definitely be disinterested witnesses. Though minor discrepancies have been pointed out in the ocular account to discredit the testimony of the eye-witnesses, but this does not destroy their veracity in any material way. The participation of the three appellants in the crime, therefore, stands clearly established. The ocular account being clear, convincing and natural, inspires confidence and clearly proves the participation of the appellants in the crime in instance.
15. The prosecution has offered the medical testimony and the recoveries, as corroborative evidence in the case. The recovery of the blood-stained chhuri and clothes at the instance of Haji and Allah Ditta, appellants, stands clearly proved by the evidence of Musa P W. 12 and Ali Muhammad S. I. P. W.
14. Though there are some minor discrepancies in the statements of these two witnesses as to the manner in which Haji, appellant, pulled out the chhuri and the blood- stained clothes from the bharoli, but this does not in any way detract from the truthfulness of the said recovery. The recoveries effected at the instance of Haji and Allah Ditta, appellants, are incriminatory and act as strong corroboration to the ocular account. The recovery of rifle P. 9, at the instance of Yaseen, appellant, cannot be used as corroborative evidence, as the crime empties were not sent to the Forensic Science Laboratory before the recovery of the rifle. In fact, both the crime empties and the a rifle were sent on the same day to Forensic Science Laboratory for examination. Whatever little corroborative value the said recovery had, stands lost. In these circumstances, the recovery of the rifle P. 9 at the instance of Yaseen, appellant, cannot be held to corroborate the ocular account. The medical evidence clearly shows that the deceased received four incised wounds, one of which was severe and fatal. The number and nature of these incised wounds clearly show that the deceased was attacked by one or more assailants armed with sharp-edged weapons. However, the fire-arm wound on the left leg of the deceased does not give the impression that it was caused by a rifle. The dimension of the fire-arm would rather indicates that it was the result of a gunshot, where the charge en masse hit the left leg below the knee and fractured the bone into smithreens. Yaseen, appellant, is stated to have used a rifle. The injury on the deceased is not that of a rifle. May be Yaseen, appellant, had a gun, but the eye-witnesses have made a bona fide mistake in referring to the same as a rifle. However; Yaseen, appellant, is entitled to the benefit of doubt on the ground that the medical evidence conflicts with the ocular account.
16. The upshot of the above discussion is that the motive, the ocular account, the recoveries and the medical evidence, conclusively prove the case of the prosecution against Haji and Allah Ditta, appellants, They appear to have been properly convicted under section 302/34, P. P. C. The- conviction and sentence of Yaseen, appellant, under section 302134, P. P. C. Is not well-founded and is, therefore, set aside. Fine, if any, recovered from him, shall be refunded to him.
17. The only question that now remains is that relating to sentence. It appears that in the earlier case relating to the murder of Jindwadda, Siddique, Khalil and Ashiq, who are connected with the present'" complainant party, were the accused in that case, who secured their acquittal on the basis of a compromise arrived at with the present accused party, whereby both the sides had decided to resile from their statements so that the accused in both the cases may be acquitted. It seems that members of the present accused party kept their promise, thus leading to the acquittal of Siddique, Khalil and Ashiq, but the present complainant party appears to have resiled from their bargain and have given true evidence to sustain the charge against the appellants. Though as a- general rule we would not countenance such a contract or lend any direct or indirect assistance to it, being an agreement against public policy, but for the purposes of the question of sentence, the dictates of justice compel us not to entirely overlook equity and, therefore, whilst leaning in favour of this virtue, to maintain balance, as a very special case, we would hold that the ends of justice would be met if Hall and Allah Ditta, appellants, are granted the lesser penalty.
We therefore, sentence Haji and Allah Ditta, appellants under section 302/34 P. P. C. To life imprisonment each with a fine of-Rupees Five Thousand (Rs. 5,000) each or in default to further undergo rigorous imprisonment for one year each. Fine, if recovered from them, shall be paid to the heirs of the deceased as compensation under section 544-A, Cr. P. C. The appellant shall be entitled to the benefit of section 382-B, Cr. P. C.
18. The appeal of Yaseen, appellant, is therefore fully accepted. He shall be released forthwith, if not required in any other case. The appeal of Haji and Allah Ditta, appellants, is partly accepted, in terms of reduction of sentence, as stated above.