' Inayat (24), Nazir (34, Bashir Ahmad (35) and Mehdi Khan (27) sons of Khawaja caste Gujjar residents of Village Mall Tehsil and District Gujrat, were tried by Ch. Muhammad Amjad Khan Additional Sessions Judge Gujrat, under sections 302/307/34, P. P. C. For having caused the death of their first cousin Nazir son of Rajay Khan and for making a murderous assault on Mst. Khanum Bibi, Rajay Khan father of the deceased and Muhammad Hanif, in furtherance of their common intention on 30-8.1975 at about degarwela. The learned Additional Sessions Judge found them guilty under sections 302/331/324/34, P. P. C. And sentenced them as follows :- "Under section 302/34, P. P. C. To life imprisonment and a fine of Rs, 2,000 each or in default of payment of fine to undergo further one year's R. I. Each. They were further directed to pay Rs, 2,000 each to the heirs of the deceased or in default thereof to suffer further one year's R. I. Each. Under section 324/34, P. P. C. To two years' R. I. Each and Under section 323/34, P. P. C. To one year's R. I.
Each on two counts for causing simple injuries to Mst. Khanum Bibi and Rajay Khan.
2. They have filed the present appeal.
3. The matter was reported to the police by Muhammad Anwar, real brother of the deceased, on the same day at 7-30 p.m. F. I. R. Exh. P. H. Was recorded by Tasaddaq Hussain S.-I. (P. W. 13). It was stated in the F. I. R. By the complainant that on 30-8-1975 at degar wela he alongwith his father Rajay Khan and brothers Nazir Ahmad (deceased) and Muhammad Hanif were returning to their village from their fields. Nazir Ahmad deceased and Muhammad Hanif, his brothers, were going ahead of him. When they reached near the field of one Nawab son of Hakim situated at a distance of 100 karams towards South-East from the village, all the appellants suddenly came there from the village side. Inayat and Nazir appellants were armed with hatchets whereas Mehdi and Bashir Ahmad appellants had sotas with them. They raised a lalkara that they would not allow the complainant party to go alive. Then Bashir Ahmad appellant inflicted a sota blow on the left side of the face of Nazir deceased on receiving which he fell on the ground. Thereupon Nazir appellant gave a hatchet blow on the right leg of the deceased, Inayat appellant inflicted a hatchet blow on the left leg. Mehdi appellant also gave sota blows to the fallen deceased. Thereafter Inayat and Nazir appellants caused injuries to Muhammad Hanif P. W. With the hatchets on receiving of which the latter fell on the ground. Besides this Bashir Ahmad appellant inflicted a sota blow on his left eye. Rajay Khan P. W. Then came forward to rescue him, Inayat appellant gave a hatchet blow on his right leg, he fell on the ground and then Inayat appellant belaboured him with the wrong side of his hatchet. Bashir Ahmad appellant gave a sota blow to Rajay Khan P. W. The complainant on account of his fear did not go near and continued raising the alarm which attracted Mst. Khanum Bibi P. W. Who came running from the side of the village and on reaching the spot fell on her brother Nazir deceased. She was given sota blows by Bashir Ahmad and Mehdi appellants.
Thereafter, all the appellants went to the village side. Nazir deceased became unconscious and after a while succumbed to the injuries at the spot.
' The occurrence was allegedly motivated by the fact that for/five months prior to the occurrence the complainant party injured Khawaja, the father of the appellants and a case under section 307, P. P. C. Was registered against the complainant party which was pending at the time of the occurrence.
4. After recording the F. I. R. Tasadduque Hussain S.-I proceeded to the spot. He prepared an injury statement Exh. P. I. And inquest report Exh. P. J. Of the deceased. Similarly, he prepared the injury statements of all the injured P. Ws. He took into possession blood-stained earth from the spot vide memo. Exh. P. N. On the following day i,e, 31-8-1975. He sent the dead body to the mortuary for post- mortem examination. The appellants were produced before him by their father on 2-9-1975, so he formally arrested them. Inayat and Nazir appellants produced hatchets P. 4 (which was bloodstained) and P. 5 which were taken into possession vide memos. Exh. P.
0. And P. Q. Respectively. Similarly, appellants Mehdi Khan and Bashir Ahmad produced sotas P. 6 and 7 which were taken into possession vide memos. Exh. P. R. And Exh. P. S.
5. Dr. Soleman F. Elahi (P. W. 11) performed autopsy on the dead body of Nazir Ahmad deceased on 1-9-1975 at 11-00 a.m. He found the following injuries on his person
(1) Multiple contused wounds total area 2' x r X bone deep on the top of head.
(2) A purplish black bruise e" x i" on front of left chest.
(3) A haematoma x / on the back of right side of head.
(4) An incised wound placed obliquely across back of right leg 1' below the calf. It measured 2' x 1" bone deep.
(5) An incised wound placed obliquely across back of left leg measuring 1' x V' bone deep.
' In his opinion death occurred on account of the laceration and contusion of the brain as also intra-cranial haemorrhage and shock due to the head injury. The injuries were ante-mortem.
Injuries Nos. 1, 2 and 3 were caused with blunt weapon whereas Injuries Nos. 4 and 5 were the result of a sharp-edged weapon. The probable time that elapsed between the injuries and death was about half an hour and that between death and post-mortem was "within past 48 hours", ' Dr. Muhammad Sami Tariq (P. W. 9), on 31-8-1975 at 9-00 p.m. Examined Muhammad Hanif P. W.
And found six incised wounds on his left upper arm, left hip, left back chest, above the left lat: maleolus, below the lat: maleolus and on the left buttock ; one swelling on the dorsum of left hand and a laceration below the left little toe. These injuries were of 24 to 36 hours duration.
' He also examined Rajay Khan P. W. On the same day and found six injuries on his person. Injury No, 2 was later on declared as grievous while rest were simple. The injuries were caused within the duration of 24 to 36 hours.
' Lady Dr. Iqbal Javid (P. W. 4) on 1-9-1975 examined Mst. Khanum Bibi P. W. She was found to have suffered five injuries on different parts of her body. Injuries Nos. 1 and 5, were kept under observation but later on declared as simple. The remaining injuries were also simple.
6. In support of its case the prosecution relied upon the following pieces of evidence :-
(1) the ocular evidence furnished by Muhammad Hanif (P. W. 6), Rajay Khan (P. W. 8), Mst. Khanum Bibi (P. W. 12), the injured witnesses, and Muhammad Anwar complainant (P. W. 14) ;
(2) the evidence of motive given by the same set of persons who witnessed the occurrence ;
(3) the incriminating recoveries supported by Muhammad Anwar and Tasadduque Hussain S.-I. P.
Ws.
(4) the medical evidence.
7. The appellants when examined at the trial under section 342, Cr. P. C., denied all the allegations levelled against them including the recoveries at their instance. They stated that they had been falsely involved in the case due to enmity and that they were innocent, maintaining :- ' A she-donkey belonging to Nawab son of Hakim Ali was killed by Nazir deceased and Hanif P. W.
As the same had damaged their crop. There was also ill-will between Khan and his brother Nawab, the brothers-in-laws of or uncle Bagga Khan, on the purchase of a piece of land in village Malki.
Some occurrence took place in which we did not participate and it is rumoured that the occurrence took place after the evening and we have been implicated on account of enmity."
' Only Nazir appellant produced Tajey Khan (D. W. 1) in his defence who deposed that he was father-in-law of the deceased. At night time he heard the alarm from the side of the field of Nawab and Allah Ditta. He went there and found the deceased lying unconscious. Rajay Khan P. W. Was also present there. On his asking as to who had beaten Nazir deceased, Rajay Khan P. W. Told him that since there was darkness, some unknown assailants had killed him.
8. The learned trial Judge by his detailed discussion in paragraph No, 11 of his judgment, believed the ocular account of the occurrence, and the motive. He discussed the evidence of recovery of the incriminating articles at the bottom of page 15 of his judgment which is to the effect :- "The recoveries of sotas, can however, not be taken as a corroboratory piece of evidence because according to the Investigating Officer only hatchet Exh. P. 4 produced by accused Inayat on 2-9- 1975 was stained with blood and was made into a sealed parcel. The remaining weapons were not stained with blood. The report of the Serologist about the hatchet Exh. P. 4 is not positive as according to this report the blood had disintegrated, hence its origin could not be detected. It cannot thus be said with an amount of certainty that these very weapons were used in the commission of the offence."
' He, therefore, ruled out of consideration the recovery of weapons.
' The learned trial Judge however, sought corroboration from the medical evidence.
' In paragraph No, 16 of his judgment he discussed the evidence of Tajey Khan D. W. And rejected the same.
' While rejecting the defence plea of Nazir appellant, the learned trial Judge concluded that the statement of Tajey Khan D. W. Who was the father-in-law of the deceased that the occurrence took place at night time and he had reached the spot immediately on hearing the noise where he found Nazir lying injured and Rajey Khan P. W. Present who even did not know who killed the deceased, was not convincing for the reasons that although he being the father-in-law of the deceased he was also the real uncle of the appellants and, therefore, by the passage of time he had developed a soft corner for the appellants who were his real nephews. He had categorically denied that he had seen injuries on the persons of Rajey Khan, Muhammad Hanif and Mst. Khanam Bibi P. Ws. He stood belied by the medical evidence as to the injuries the three P. Ws. Suffered and the deceased, that could in no way be expected that as many as three persons including a lady would suffer voluntarily such a large number of injuries merely to show that they were eye-witnesses.
9. The learned counsel for the appellants has contended that all the appellants are real brothers, therefore, the possibility of false involvement of some of them cannot be ruled out. Nazir appellant has been falsely involved because the hatchet alleged to have been produced by him was not bloodstained. There is no evidence of pre-concert, at the most it can be described as a sudden occurrence. Rajey Khan P. W. Did not mention as to any ambush or any way-laying by the appellants. Rajey Khan P. W. And father of the appellants Khawaja are real brothers and their being no blood-feud between the parties, so the intention to kill is not there. The offence committed is that of beating in view of which the liability at the most is that of an offence under section 325, P. P.
C. Since no injury can be regarded as to fall under section 326, P. P. C. The offence as to the injuries caused with a sharp edged weapon can be regarded as falling under section 324, P. P. C. Only and as the author of the head injury to the deceased which caused the death is not known, the injury alleged to have been caused on the left side of the face by Bashir Ahmed appellant finds no place in the 'medical examination, therefore, the appellants cannot be burdened with the liability under section 302/34, P. P. C. Specifically so when the intention to kill is not inferable from the evidence.
The complainant was not there otherwise he would have also been injured along with the others.
Mst. Khanam Bibi P. W. Was not present during the occurrence; therefore, her statement as to the detail of the occurrence is liable to be excluded.
10. In reply the learned counsel for the State has submitted that in view of the previous litigation between the parties under section 307, P. P. C. The motive stands established. All the witnesses are natural witnesses because they were injured except the complainant. When the infliction of injuries was being continued Mst. Khanam Bibi P. W. Was very much present. The intention to kill can be gathered from the nature of the weapons which at least two appellants namely Nazir and Inayat were carrying. Section 34, P. P. C. Is very much applicable in view of the opening of the attack and the consequences thereon. The attack was in fact pre-planned. All the appellants had come together to accomplish that. From the conduct of all the appellants the question of individual liability does not arise. The appellants have been rightly convicted and awarded sentences by the learned Additional Sessions Judge in view of which the appeal merits dismissal.
11. The first contention raised by the learend counsel for the appellants cannot be regarded as a rule in the very appreciation of evidence that when real brothers are involved the possibility of false involvement ipso facto of some of them is always there. It depends upon the circumstances or facts appearing in the evidence from which one can infer that whether the case is one of false involvement as to some of the accused. The evidence adduced by the prosecution has amply established that all the appellants participated in the occurrence and the injuries received by the deceased and the three injured are quite commensurate with the number of the appellants. The testimony of the witnesses who are injured during the occurrence cannot be easily brushed aside.
The account as rendered in the evidence by Muhammad Hanif and Rajey Khan P. Ws. And the subsequent appearance of Mst.B Khanam Bibi as to her receiving of injuries is believable and it has been rightly relied upon by the learned trial Court. To say that Nazir's involvement is false because the hatchet produced by him was not bloodstained does not appeal to the reason. It can be very easily said that Nazir appellant was careful enough as to wash off his hatchet before he produced that to the police while Inayat appellant was not so, such a ground can hardly be treated as weighty. The contention of the learned counsel that the complainant was not present at the place of occurrence, had he been so he would not have escaped unhurt is not sustainable. The complainant though accompanied the injured has said that at the time of confrontation on account of fear he did not go near and went on raising the alarm. In the site-plan Exh. P. F. He is shown at a distance of fifteen Karams from the place of occurrence. Rajey Khan and Muhammad Hanif P. Ws. Were at a distance of five and, six Karams respectively. All the injured unanimously say that the complainant accompanied them when they were returning from their fields. The complainant as to the main incidents of the occurrence has withstood the test of cross- examination. It is true that there is absence of blood-feud between the parties except the incident relating to Bagga and Khawaja, the father of the appellants or either of them about which a case under section 307, P. P. C. Was pending against the complainant party. The applicability of section 34, P. P. C. In this case presents a little difficulty. Muhammad Anwar complainant deposed that on the day of occurrence he along with his father and brothers including the deceased was coming to the village after doing their Zamindara work in the fields and when they reached near the land of one Nawab all the appellants confronted them. In the F. I. R. With which he was confronted he stated that all the appellants had come up all of a sudden from the village side.
12. Muhammad Hanif P. W. Deposed that on the fateful day he, his father and brothers Muhammad Anwar and Nazir deceased were coming to the village at Degarwela after doing their Zamindara work in the fields. When they reached the land of Nawab, all the appellants got up from the Bajra field where they were hiding. In his cross-examination he stated that the appellants were 5/6 Karams from them when they saw them first. The appellants emerged suddenly and raised a lalkara and when he saw towards them he found them standing on the pacdandi in the Bajra field of Allah Ditta and Nawab. He further stated that he had not stated in his examination-in-chief that the appellants had got up from the Bajra field but he had stated that they had come out from the Bajra field. He was confronted with his statement in the examination-in-chief. When he took up the position that he had stated in his statement ham the police that the appellants had come out of the Bajra field, he was confronted with his statement where it was not so recorded. He was again confronted with his statement under section 161, Cr. P. C. When he stated that he had not stated to the police that the appellants had come from the village side, wherein it was so recorded. Rajey Khan P. W. Stated that while returning when they reached near the land of Nawab the appellants armed respectively with hatchets and sotas suddenly came forward. In his cross-examination he stated that the appellants were at a distance of 4/5 Karams from them when he first saw them. He could not say if before his seeing them they were sitting or not. He had not stated in his statement to the police that the appellants had come from the village side. He was also confronted with his statement made to the police where it was recorded that the appellants had come from the village side.
13. From the statements of these three eye-witnesses it can be deduced that they being conscious of something improved their statements at the trial. So the fact is fixed as that the appellants were coming from the village side. There is nothing to indicate in the evidence apart from the attribution of a lalkara that the appellants had come with preparation and intention from the village side to assault the deceased and the injured. As to the weapons which they were carrying nothing can be inferred because such weapons the villagers usually possess or carry alongwith them and the observation of the learned Additional Sessions Judge that the intention of the appellants was evident from the fact that they were armed with deadly weapons like hatchets and sotas, cannot be well accommodated. The lalkara has been attributed to the appellants so as to be indicative of their common intention to kill. Such lalkaras are to be cautiously received because in criminal cases it has become a common use. The witnessess being close relation could say anything to embellish or strengthen the prosecution case and sin there existed a difference between the parties due to the case as mentioned above, the witnesses cannot be relied upon in this regard in verbatim. Had there been some independent witness deposing as to the lalkara then tha could have gone towards establishing a common intention. It has already been observed above that the appellants were coming from the village side but it is not known as to where they were going. It is quite likely that the parties came across with each other per chance. As to the attack what preceded that nothing can be said positively in the absence of an independent witness whether there took place an unpleasant verbal exchange which prompted the appellants to attack the P.
Ws. And the deceased since they were inimical to each other and such an enmity can be construed both the was. It is not true to say that only the appellants were aggrieved party, so as to have motive against the deceased party. The case was already pending against the complainant party and a complaint filed by Rajey Khan against Khavvaja, the father of the appellants, had already been rejected, so the witnesses and the deceased had also some grudge against the appellants and their father E and uncle. When such a situation arises or the things come to such a pass then the best course open for the safe administration of justice is to infer the intention and its extent whether that is common or individual, from the manner of attack, the conduct of the assailants and the consequences which immediately follow. Now viewed from this angle had there been a common intention to kill all, and all the appellants behaved in furtherance of the common intention of all then Nazir and Inayat appellants who were carrying the hatchets would have accomplished that purpose very easily within the shortest possible time because the deceased and the injured were empty handed. Inayat and Nazir appellants are attributed one injury each having been caused with the hatchets on the non-vital parts of the deceased i,e, legs which injuries were returned as simple. Had there been an intention of Inayat and Nazir appellants to kill then they would have wielded their respective weapons with vigour and would have aimed at the vital parts of the F body of the deceased. Taking their behaviour and the act of causing injuries also to Hanif and Rajey Khan P. Ws. They had decidedly formed an intention to cause hurt but not beyond that, therefore, their conduct viewed alongwith the resultant effect is not culpable under section 302/34, P. P. C. So the contention of the learned counsel for the State that the question of individual liability does not arise is therefore partly rejected.
14. As to the liability of Mehdi and Bashir Ahmad appellants the matter stands on a different footing.
They had given rota blows with full vigour on the vital part of the body of the deceased i,e, the head or the region near it. Bashir Ahmad appellant was the first to hit the deceased. He gave a vigorous dang blow on the left side of the face or above it which made the deceased to take a fall and apart from the blows of Inayat and Nazir appellants, Mehdi appellant is also attributed rota blows (complainant's statement per vernacular record) and since the injuries on the head have been assessed as- having been caused with blunt weapons therefore it can be fixed without any difficulty that Bashir Ahmad and Mehdi Khan accused who were carrying sotas had caused the injuries on the vital part of the body which contributed towards the death of the deceased. As to the contention of the learned counsel that the medical evidence revealed no injury on the left side of the face of the deceased, therefore, no such injury was caused, the inquest report can be referred to in this behalf wherein this injury is mentioned in the form of a wound and if this injury has not been mentioned in the post-mortem report that would not mean that no such blow was given because it finds its place the other way round as a resultant effect when the doctor talks about the multiple fissured fracture seen on the left parietal and left temporal bone with a depression of bone over the left parietal region. As to the exact place of the injury the witnesses cannot be expected to observe an injury with a rectitude when they are themselves in a dangerous If plight.
The contention of the learned counsel for the appellants that the author of the head injury is not known, cannot be given much importance for the reason that the first sota blow was attributed to Bashir Ahmad appellant on the left side of the face and the latter sofa blows to Mehdi Khan, so on the top of the head the injury was inferably caused by no body else than Mehdi Khan appellant.
Injury No, 2 on front of the left side of the chest and injury No, 3 the appellants under section 324/34, P.P.C. For causing injuries to Muhammad Hanif P. C. Are maintained. Similarly, the conviction and sentences of all the appellants on two counts under section 323/34, P. P. C. For causing simple injuries to Mst. Khanam Bibi and Rajey Khan P. Ws. Are upheld. The sentences shall however, run concurrently. Inayat and Nazir appellants have already served about the and a half years' R. I. And since their conviction and sentences under section 302/34, P. P. C. Have been set aside, therefore, they shall be released forthwith if not required to be detained in connection with any other case.