The appellants in Appeal No. 310/80 Mano and Shafi and appellant Niamat in J. Appeal No. 322/80, being aggrieved by judgment dated 21st August, 1980 of the learned IInd Additional Sessions Judge, Nawabshah, in Sessions Case No. 328/76, by which appellants have been convicted under section 302/149, P. P. C. And sentenced to suffer imprisonment for life and also to pay fine of Rs. 1,000 each or in default to suffer further R. I. For six months and have been further convicted under section 325/149, P. P. C. And sentenced to suffer R. I. For one year each and also convicted under section 147/148, P. P. C. And sentenced to suffer R. I. For one year, have preferred the above two appeals, on the following facts and grounds.
2. The brief facts giving rise to the prosecution case are that com--plainant Inayat is Nekmard of Esai community of Nawabshah. On 8th July, 1976, the incident of this case took place at 7 p.m. And the report was filed at 7-40 p.m. By the complainant alleging, that he used to know appellant Niamat and others of this case in which Yousuf and Meena are absconders. The complainant also knows P. Ws. Buxo, Umer, Ghulam Hyder and others. He also used to know Ashraf (now deceased).
About 2-3 days prior to the day of incident, one she-donkey of Rashid Esai was eating grass of Rasheed's she-donkey, on which Rasheed drove away the she-donkey of appellant Mano, after giving 2-3 lathi blows. On that appellant, Niamat, Mano, Yousuf and Meena came and quarrelled with Rasheed and his helpers Maqbool, Buxo and Ashraf. However, the residents of Muhallah intervened and subsided the quarrel, but the appellant continued giving them warnings, that they would see Rashid. The complainant also ---SHAMJAD--- the appellants party, but all in vain. After 2-3 days, viz. On the day of incident of this case, the complainant. Had gone to take tea in the hotel, alongwith Umar and Ghulam Hyder and when they reached in the market, they saw P. Ws. Buxo, Maqbool and Ashraf (now deceased) that they were being followed by appellants Mano alias Kiri, Shafi, Niamat, Yousuf (absconder) and Meena (absconder). Appellant Mano caught hold of Ashraf in the arms and Shafi caught hold of Maqbool. Appellant Niamat started giving knife blows to Ashraf on his neck, whereas Yousuf started giving blows to Maqbool who was caught hold by Shafi.
Appellant Meena gave knife blows to P. W. Buxa. The complainant party reached, at the wardat and tried to rescue the party of Ashraf. Other people also came at the wardat, as it was a central place opposite to Cafe Mehmood. Ultimatel all the appellants left Asltraft Maqbool and Buxa after causing them knife injuries and then they went away. Injured Ashraf became unconscious. The complainant made enquiry from Maqbool and Buxa, who informed them, that they had come to Papan Ojhriwala to eat ojhri (stomach of butchered animal), but when they were out to eat ojhri, all the five appellants reached there and they said, that they would eat ojhri first. On that, appellant Mano instigated other appellants, that the party of Ashraf had already raised the dispute of 2-3 days prior to the incident and therefore they should not be left. On that, all the appellants started.
Assaulting the party of Ashraf, who tried to run away, but they were caught hold and given knife injuries as seen by the complainant narrated above.
3. The complainant took up all the three injured in a tonga and proceeded to Town P. S. Nawabshah, but Ashraf died in the tonga before reaching at the P. S. However, the complainant produced the dead body of Ashraf and the two injured before the S. H. O. And lodged the F. I. R. S. H.
O. Malik Muhammad Yousuf recorded the F. I. R. According to law and obtained his signature thereon. The complainant had also brought injured Maqbool and Buxa and deceased Ashraf alongwith him. The S. H. O. Called Mashirs Wazir Hussain and Noor Khan in whose presence he prepared the Mashirnama of injuries of Maqbool and Buxa and referred them to the hospital. He also prepared inquest report of dead body of Ashraf in presence of the same Mashirs. The S. H. O.
Referred the dead body of Ashraf to the Medical Officer for post-mortem examination, through P. C.
Noor Khan. In the meantime, P. C. Shah Nawaz produced appellant Niamat alias Bada at the P. S. And produced a blood-stained knife, which was secured from the appellant. The S. H. O. Secured the blood-stained knife and arrested appellant Niamat and prepared such a Mashirnama in presence of the same Mashirs. Appellant Niamat was wearing a blood-stained loin-cloth which was also secured by the S. H. O. Under the Mashirnama Exh.
40. The Investigating Officer recorded the statements of P. Ws. Ghulam Hyder and Umer. He then proceeded to the place of wardat, which was shown by the complainant. S. H. O. Muhammad Yousuf called the Mashirs Ismail and Albert in whose pre--sence, he saw the wardat, which was opposite to the hotel near Sabzi Market. There was blood stains on the earth. He secured the blood--stained earth and sealed it in a packet and also prepared the Mashirnama of wardat in presence of the same Mashirs. The S. H. O. Arrested appel--lant Mano alias Kiri and Shafi in presence of the same Mashirs. On 9th July, 1976, S. H. O.
Recorded the statements of P. Ws. Maqbool and Buxa and ultimately challaned the appellant. He sent up blood-stained articles to the Chemical Analyser, whose report has also been brought on record vide Exh.
52. All the accused have denied the prosecution allega--tions and proclaimed innocence of the offence. They have stated, that P. Ws. Inayat and Ghulam Hyder are Leaders of Esai Community and they have grudge against them and thereby they falsely implicated them.
4. In order to establish charge against the appellants, the prosecution had examined Tapedar Kamaluddin, complainant Inayat, Dr. Muhammad Sharif Khan, injured Buxo, P. C. Noor Khan, Mashir Ismail, injured Maqbool, Ghulam Hyder, P. C. Shah Nawaz, Mashir Noor Masih and lastly S. H. O. Malik Muhammad Yousuf. No defence evidence had been produced by the appellant.
5. The learned trial Court taking into consideration the evidence adduced by the prosecution, convicted and sentenced the appellants above-named as hereinbefore mentioned and consequently appellants have filed the above appeals, on the grounds mentioned in their respective memo. Of appeals.
6. The appellant Niamatullah who was present in person in custody submitted, that be was innocent and has been falsely involved in this case due to enmity.
7. The learned Advocate for appellants Mano and Shaft submitted as under: -
(a) P. Ws. Are inter-related and inimical to the appellants and as such no reliance can be placed on their statements, without inde--pendent corroboration.
(b) There are material contradictions between the evidence of P. Ws.
(c) That prosecution alleges no injuries to the deceased by these two appellants at all. The only allegation against appellant Mano, in respect of the deceased are, that he grappled with the deceased and consequently helped appellant Niamatullah to stab the deceased. However, prosecution has led no evidence at all to prove the apple--cability of the provisions of section 34, P.
P. C, as far as these two appellants are concerned.
In support of his above submissions the learned counsel for appel--lants relied upon case reported in PLD 1981 Kar. 1.
8. The learned Advocate for the State, at the outset submitted, that he was not supporting the convictions of appellants Mano and Shafi. He however submitted, that as far as appellant Niamat is concerned, besides direct evidence of P. Ws. There is corroborative evidence like recovery of chhuri from this appellant and blood-stained clothes from his person, and according to Chemical Examiner Report; they were stained with human blood and as such he supports the impugned judgment, as far as appellant Niamat is concerned:
9. I have carefully considered the above submissions of the learned counsel and have gone through R. & P. Of the learned trial Court and impugned judgment.
10. I would take up the care of appellants Mano and Shaft first. The prosecution evidence as far as appellant Mano is concerned is, that he grappled with the deceased, when appellant Niamat gave knife injuries to the deceased. As far as appellant Shafi is concerned no Dart is assigned to him for having caused any injury to the deceased in the incident in question nor any overt act is assigned to this appellant in respect of the injuries received by the deceased. The prosecution case rests on the evidence of four P. Ws. Namely P. W. Inayat, complainant, P. W. Buxal (injured) P. W. Maqbool (injured) and P. W. Ghulam Haider. All these four eye--witnesses in their depositions have stated before the learned trial Court, that prior to the incident in question, there was a sudden quarrel in a hotel over empty cup, which started the fight, in which deceased and P.,W. Buxal and P. W. Maqbool received injuries. There is nothing in the evidence so as to suggest that these two appellants came with the common intention to the hotel in question and started quarrel with the deceased and two injured P. Ws. And as such the act of appellant Niamat in giving injuries to the deceased, which according to the evidence of doctors were sufficient in ordinary course of nature to cause of death, could no be attributed to have been caused as result of common intention between these appellants and appellant Niamat and consequently I agree with the submission made by the learned Advocate for the State, that these appel--lants cannot be held liable under section 149, P.
P. C. For having caused the murder of deceased Ashraf, as mere grappling by appellants Mano with the deceased, in the face of admitted background of quarrels bet--ween the parties; the alleged grappling by Mano, with the deceased cannot be held to be in furtherance of common intention and object between all the three appellants. As far as simple injuries caused by these appellants to P. W. Buxal and P. W. Maqbool, it is an admitted position, that there A was a sudden quarrel between the parties, just before the incident in question in the hotel over the empty cup and as such in the course of the said quarrel the simple injuries received by these two injured P. Ws.
Which according to the evidence of doctor P. W. Muhammad Ashraf were not inflicted with much force, shows, that these appellants although alleged to be armed with chhuris and were in a position to inflict severe injuries to these witnesses, but did not do so. Further, all the four eye- witnesses are admittedly inter-related and there is admitted background of enmity between them over the union affairs with these two appellants and as such no reliance can, be placed on their statements, without independent cor--roboration, which is not available as far as these two appellants are con--cerned. Therefore, I hold that the prosecution has failed to establish its case against these two appellants beyond reasonable doubt.
11. As far as the appellant Niamat is concerned, all the four P. Ws. Have stated that he caused knife injuries to the deceased Ashraf, which according to doctor were sufficient in ordinary course of nature to cause his death. . No doubt all these four P. Ws. Are inter-related and there is a background of quarrel and enmity between these witnesses and the appel--lant Niamat and as such their evidence requires independent corrobora--tion. In my opinion such independent corroboration, as far as appellant Niamat is concerned is available on record, by his arrest on the spot, with blood-stained chhuri and clothes, which was worn by him by P. W. 9 Shah Nawaz P. C.
Against whom no enmity at all is alleged. In addition to this the evidence of these four witnesses is corroborated by medical evidence. The Chemical Examiner's report Exh. 52 clearly shows that Urjik (dhoti) which was recovered from the person of the appellant Niamat was stained with human blood, although the blood on the chhuri recovered from the appellant Niamat could not be identified due to dis--integration. The appellant Niamat had no injuries on his person and as such blood on his clothes cannot be presumed to be his own blood. However, it is clear from the F. I. R.
Exh. 16 and evidence of P. W. 4 Buxal and P. W. 7 Maqbool the injured eye-witnesses, that there was a sudden quarrel between the parties over the empty cup in hotel, which started the incident in question and as such in my opinion-the offence committed by the appellant Niamat would also fall under section 304 (1), P. P: C. And not under section 302, P. P. C. As field by the learned trial Court.
12. Therefore, in view of my above conclusion, I allow Criminal Appeal No. 310/80 filed by appellants Mano and Shafi and set aside their convictions as well as sentences awarded to them by the impugned judgment and acquit them by giving them benefit of doubt and direct that both these, appellants be released forthwith if they are not required in any other case.
13. As far as Jail Appeal No. 322/80 filed by appellant Niamat is concerned, while dismissing the said appeal, I alter the conviction of the said appellant on merits from section 302, P. P. C. To section 304 (1), P. P. C. And consequently alter his sentence from life imprisonment to R. h for 10 years. I also impose fine of Rs. 1,000 on appellant Niamat and in case of default in payment of fine I further direct, that he should suffer R. I. For 6 months more. In case fine is paid by the appellant Niamat the same shall be paid to the legal heirs of the deceased Ashraf as compensation under section 544-A, Cr. P. C. However I set aside his conviction under section 324/149 and under section 147/148, P. P. C. Under the impugned judgment as prosecution has failed to establish the common object and intentions between the appellants inter se, by any cogent evidence on record.
14. I further direct that appellant Niamat be given benefit of section 382-B, Cr. P. C. In respect of his period of detention as under trial prisoner after due verification by the Jail authorities, towards his substantive sen--tences, in addition to all other remissions to which the appellant may be entitled, in accordance with the, rules.
15. Both the above appeals stands disposed in the terms of the above judgment.