LEHRASAP KHAN, J.---Muhammad Aslam aged 38 years ; Muhammad Asghar aged 32 years, their father Muhammad Khan (since acquitted) aged 65 years ; Niaz Ali aged 56 years , and his two sons Muhammad Rafiq and Sharif aged 30 years and 36 years respectively, were tried by the learned Addl. Sessions Judge, Gujrat, for the offences punishable under sections 302, 337 and 148, P.
P. C. Read with section 149 of the same Code for having formed an unlawful assembly while armed with lethal weapons like pistol, hatchet and Sotas and for committing the murder of Muhammad Siddique deceased in prosecution of the common object of the said unlawful assembly and for making a murderous assualt on Bashir Ahmad, Nazir Ahmad and Muhammad Sharif P. Ws. At about Deegarwela on 22-1-1973 in the area of village Shadiwal, District Gujrat.
2. The learned trial Judge vide his judgment dated 15-12-1979 has con--victed Muhammad Aslam, Muhammad Asghar, Niaz Ali, Rafiq and Sharif under sections 302, 324, 323 and 148, P. P. C., read with section 149, P.P.C. He has sentenced Muhammad Aslam appellant to death and a fine of Rs. 2,000 or in default to suffer R.
1. For a period of 6 months under section 302/ 149, P. P. C., Muhammad Asghar, Rafiq, Sharif and Niaz Ali have been sen--tenced to imprisonment for life and a fine of Rs.
2,000 or in default to 6 monts' R. I. Each under section 302/149, P. P. C. All the five appellants have been sentenced to 6th months' R. I. Under section 148, P. P. C., 6 months R. I. Under section 324/149 P.
P. C., on two counts and to 2 months R. I. Under section 323/149, P. P. C. All the sentences have, however, been directed to run concurrently. In regard to conviction under section 302/149, P. P. C., it has further been directed that all the appellants shall pay Rs. 2,000 each as compensation to be paid to the heirs of the deceased Muhammad Siddique failing which the defaulter shall suffer R.I.
For a period of 6 months.
3. The appellants have preferred the present appeal against their convic--tion and sentence. The matter is also before us for having been referred to under section 374, Cr. P. C., seeking confirmation of death sentence awarded to Muhammad Aslam appellant.
4. The appeal as also the murder reference shall be disposed of by this judgment.
5. The F.I.R. Account of the prosecution version is that about 1.8/19 years prior to the present occurrence, Muhammad Hussain, the further of Muhammad Siddique deceased, Bashir Ahmad (P.
W. 12) the first informant, Muhammad Sharif (P. W. 11) and Nazir Ahmad (P. W. 7) was murdered by Sardar Khan and Muhammad Khan and Inayat son of Sardar Khan. They were, however, acquitted by the learned Sessions Judge, Gujrat. Sub--sequently, a compromise was effected between the parties and the aforesaid Sardar Khan gave his daughter Mst. Sakina Bibi in marriage to Bashir Ahmad (P. W. 12). The said Sardar Khan and Bashir installed a joint (tube--well for irrigating their land). About a month prior to the present occurrence, dispute arose between Sardar and Bashir about the use of water of the jointly installed tube-well and consequently Bashir Ahmad purchased the share of Sardar Khan in the machinery of the tube-well for a sum of Rs. 3,600. He started constructing a room for the engine of the tube-well in his own land behind his Dera and employed Inayat son of Ghulam Haider as a mason for this purpose. On 22-1..1973 Sardar Khan threatened Bashir that be would not allow the construction of room for tube-well by Bashir Ahmad. They exchanged hot words on the occasion. The mason namely, Inayat left the work out of fear. On the - same day, at Degarwela, Bashir Ahmad, his brother Muhammad Siddique deceased, Nazir (P. W. 7) and Sharif (P. W. 11) were present at their Dera, that (1) Aslam appellant armed with pistol, (2) Nazar (not tried having died prior to the trial) armed with pistol, (3) Asghar appellant armed with hatchet,
(4) Sardar Khan aforesaid (not tried on account of having died before the trial) armed with Sota;
(5) Muhammad Khan (since acquitted) armed with Sota ; (6) Inayat son of Sardat Khan (net tried having died before the trial) armed with Sota ; (7) Rafiq appellant armed with Sota ; (8) Sharif appellant armed with Sota and (9) Niaz Ali appellant armed with Sota emerged at the scene.
Sardar Khan declared to his companions that Bashir, etc. Four brothers, should be done to death.
After his Lalkarn, Aslam appellant fired with his pistol hitting Muhammad Siddique deceased on his neck. Second shot with pistol was fired at the deceased by Nazar hitting him on his left cheek. After resceiving the two shots, Muhammad Siddique fell down and became unccnsious. Asghar appellant dealt hatchet blow to Nazir (P. W. 7) on his head on the left side. Bashir Abmad (P.W. 12)
(the first informant) tried to intervene that he was also dealt a hatchet blow by Asghar appellant causing injury to him in his left collar bone. The other assailants dean Sota blows with their 4spective Sotas to the P. Ws. Kist. Bhag Bhari (given up) the mother of ushir, Sharif and Nazir and Mst. Razia (P. W. 3), their sister, who Lre cutting fodder in a nearby field came running to the spot raising wrm. They also witnessed the occurrence and entreated the assailants ahleave the P. Ws.
Siddique deceased succumbed to his injuries on the to, Bashir Ahmad (P. W. 1.2) went to Police Post, Shadiwal leaving spcr and Sharif P. Ws. In injured condition on the spot. He got recorded N statement Exh. P. E. Which was reduced to writing by Abdul Razzaq S. I. (P. W. 16). On the basis of Exh. P. E. Formal F. I. R. (Exh. P. E.) was recorded by Muhammad Hussain Shah (P. W. 6), the then Muharrir Con--stable, P. S. Kunjah.
6. Abdul Razzaq, A. S. I. (P. W. 16) after recording the statement of Bashir Ahmad proceeded to the spot. He found the dead body of Muhammad Siddique deceased lying over there. He prepared Injury Statement Exh. P. M. In respect of the dead body of the deceased and despatched the dead body to the mortuary for autopsy under the escort of Faiz Ahmad and Roshan Din F. Cs. Bashir Ahmad; (P. W. 12) accompanied him to the spot from the Police Post while Sharif and Nazir P. Ws.
Were already present at the spot. As these three P. Ws. Were in injured condition, Abdul Razzaq prepared their injury statements and sent them to the hospital for medical examination. He collected blood-stained earth from the spot where the dead body s was lying vide memo. Exh. P. A.
And made the same into sealed parcel. He also found blood-stained earth lying near the Toka machine of the accused at their Dera which was taken into possession and sealed into a parcel vide memo. Exh. P. W. 16,ID. Blood-stained earth from a plateform for offering prayer situate at the Dera of the accused was also secured vide memo. Exh. P. W. 16/E and made into a sealed parcel. He recorded the statements of the P, Ws. Sardar Khan, Muhammad Khan, Inayat and Rafiq were arrested on 24-1-1973. Hatchet Exb. P. 1 was recovered from Asghar accused vide memo. Exh. P. W.
16/F. Latbi Exh. P, 2 was taken into possession from Rafiq vide memo. Exh. P. W. 16/G. Sota, P. 3 was secured from Muhammad Khan vide memo Exh. P. W. 16/H. Sota P. 4 was taken into possession from Sardar Khan vide memo. Exh. P. W. 16/1. Aslam appellant was arrested on 3-2-1973. On 6-2- 1973 while in custody, be led to the recovery of revolver Exh. P. 5 which was taken into possession. As it was an unlicensed revolver, a separate case under the Arms Ordinance was also registered against Muhammad Aslam. The memo. Regarding recovery of revolver is not on the file of this case as the same was attached with the file of the case under the Arms Ordinance. Sharif appellant was arrested on 31-I-1973 and Sota P. 6 was recovered from him vide memo. Exh. P. B. Niaz Ali appellant was arrested on 24-1-1973 and Sota P. 7 was recovered from him vide memo. Exh. P. W. 16/J. Site plans, Exhs. P. C. And P. C./1 were got prepared by Bashir Ahmad Patwari (P. W. 4). Notes in red ink on these plans are in the hand of Abdul Razaq, A. S. I.
7. The case was partly investigated by. P. W. 8 Muhammad Asif, the then S. H. O. Police Station, Kunjah, who submitted the challan.
8. Dr. Suleman F. Elabi (P. W. 2) the then Medical Officer Aziz Bbatti Shaheed Hospital, Gujrat, performed the autopsy on the dead body of Muhammad Siddique deceased on 23-1-1973 at 11.00 a.m. He noticed the following injuries on the dead body of the decased
(1) A circular lacerated wound --" x --" directed downward and to the right, situated on the front of the neck. The margin of the wound torn, burning and edges were inward.
(2) A spindle shape lacerated wound 1--" x --" x skin deep on the left side of the face directed downward and medially. The margins are burnt and it tapered on both upper and lower borders.
9. There was fracture of fourth dorsal vertebrae and spinal cord was injured at the level of third dorsal. Membrane and brain were found healthy. Scalp and skull were found healthy.
10. In the opinion of A. Dr. Suleman F. Elahi, the death of Muhammad Siddique occurred as a result of excessive haemorrhage from direct injury to the right subslavian artery, injury to the right lung which resulted in shock and death. Injuries were ante-mortem in nature. Injury No. I was suffi--cient to cause death in the ordinary course of nature. Injuries were caused by fire-arms. Injury No. 2 was a grazing injury.
11. A metallic fire-arm bullet was recovered from the right side of the chest and same was sealed in a bottle and banded over to the Police. Exh. P. W. 2/A is the carbon copy of the post-mortem report while Exh. P. W. 2/B is the pictorial representation of the injuries.
12. Dr. Nazir Ahmad (P. W. 12) the then Medical Officer, Aziz Bhatti Shabeed Hospital, Gujrat, medically examined Nazir Ahmad P. W. On 22-1-1973 at 10-45 a.m. And noticed one lacerated wound, five contusion marks and a swelling on the body of Nazir Ahmad. Injury No. 3 was declared grievous while the rest were declared simple. All injuries were caused by blunt weapon. Exh. P. W. 15/A is the carbon copy of the medico-legal examination of Nazir Ahmad.
13. On the same day, Muhammad Sharif, P. W. Was also examined and 3 contusion marks were noticed on his body. All the injuries were simple and caused by blunt weapon. Exh. P. W. 15/13 is the carbon copy of the medico-legal report.
14. Bashir Ahmad (P. W. 12) was also examined on the same day by Dr. Nazir Ahmad. One lacerated wound and two abraded contusions were found on his body. Injury No. 2 was declared grievous while the rest were found to be simple. All the injuries were caused by blunt weapon. Exh. P. W. 15/C is the carbon copy of the medico-legal examination of Bashir Ahmad.
15. The prosecution has relied upon the ocular evidence, viz., the testimonies of P. W. 3 Razia, P. W. 7 Muhammad Nazir, P. W. 11 Muhammad Sharif and P. W. 12 Bashir Ahmad, the eye-witnesses and has sought corroboration from the medical evidence and as also from the recoveries.
16. The appellants denied the allegations against them and pleaded that they have been falsely involved in the case due to the previous enmity of the murder of the father of the deceased and P.
Ws. Razia, Muhammad Nazir, Muhammad Sharif and Bashir. Niaz Ali appellant, however, stated that he was working at the Toka machine when P. W. Bashir and Muhammad Siddique deceased arrived there. They asked him to call Nazar Muhammad saying that they would settle the matter of tube- well with him. They forcibly wanted to remove the engine of tube-well. He asked them not to do so by force whereupon Bashir and Siddique caused injuries to him (Niaz Ali) with their Sotas. He raised alarm whereupon Nazar was attract--ed to spot. He too was challenged by Muhammad Siddique and Bashir Nazar had a pistol with him. Apprehending dangefat the hands of Bashir and Siddique, Nazar fired hitting Siddique who fell down at the raiesd plat--form of the mosque which was close to his Toka machine. Siddique had ex--pired at the spot i.e. Near the platform of the mosque and was later on removed therefrom by the complainant party. He further stated, the occurrence took place at Chawela and that he was a servant of Nazar deceased and he used to work at his Dera.
17. It is noteworthy that Niaz Ali appellant was medically examined by Dr. Masood Mirza, the then Assistant Medical Officer, Rural Dispensary, Shadiwal vide medico-legal report Exh. P. G. On 24-1- 1973. Dr. Masood Mirza, since dead as reported by P. W. 13 Muhammad Ayub Constable who was deputed to effect service of summons on him. Muhammad Din Dispensar (P. W. 14) deposed that he served under Dr. Masood Mirza deceased and was fully acquainted with his signatures and handwriting. According to this witness medico-legal report Exh. P. G. Was in the hand of Dr. Masood Mirza. As per contents of Exh. P. G. 3 abrasions were found on the back, left shoulder and left arm of Niaz Ali. These injuries were simple in nature and were caused by blunt weapon.
18. The motive as alleged in the F. I. R. Is a common ground between the parties inasmuch as admittedly Muhammad Hussain father of Muhammad Siddique deceased and Nazir, Sharif and Bashir P. Ws. Was murdered about 18/19 years prior to the present occurrence. In that case, Muhammad Khan, Sardar Khan and Inayat, son of Sardar Khan were tried for that murder but were acquitted by the Court of Session. According to the prosecution, the present occurrence is sequel to the old enmity while the appellants contention is that on account of old enmity they have been falsely involved in this case.
19. The aforementioned eye-witnesses namely Mst. Razia Begum (P: W. 3), Nazir Ahmad (P. W. 7), Muhammad Sharif (P. W. 11) and Bashir Ahmad the first informant (P. W. 12) have by their testimonies fully supported the prosecution version as contained in the F.I.R. Out of these P. Ws.
Nazir Ahmad, Muhammad Sharif and Bashir Ahmad are injured P. Ws.
20. The recoveries in this case are of not of much consequence. The Sotas recovered from the appellants are ordinary Sotas which are generally available everywhere. The metallic bullet recovered from the dead body of Muhammad Siddique deceased at the time of post-mortem examination has not matched with the revolver recovered from Muhammad Aslam appel--lant. It may also be mentioned that in the case under Arms Ordinance registered against Muhammad Aslam for the recovery of the said unlicensed revolver from him, he has been acquitted for the charge although that finding has little effect so far as the present case is concerned.
21. In view of the above, the prosecution case against the appellants is based on the ocular evidence and the medical evidence.
22. It has been contended on behalf of the appellants that the medical evidence does not furnish support to the ocular evidence inasmuch as according to the medical evidence, injury No. 1 on the person of Nazir Ahmad P. W. And injury No. 1 on the person of Bashir Ahmad P. W., are lacerated wounds caused by a blunt weapon whereas in the F. I. R. Exh. P.E., it is alleged that the injuries were caused to the afore-mentioned P. Ws. By Asghar appellant with hatchet. The P. Ws., however, at the trial have stated that these injuries were caused by Asghar to Nazir and Bashir by striking that blunt side of the hatchet. As regards Muhammad Siddique deceased, it is maintained on behalf of the appellants that he had two fire-arm injuries on his neck and face which in the opinion of the Medical Officer could be the result of one shot as injury No. 2 was a grazing injury and the bullet could strike at the second place of the injury after having grazed over the first seat of injury. It is further argued that as a matter of fact the deceased suffered these injuries at the hands of Nazar who is since dead, when he and his brother came to the Dera of Nazar and caused injuries to Niaz Ali appellant. This argument is devoid of any substance because the said Nazar deceased was declared innocent as a result of Police investigation. P. W. 10 Agha Farasat Ali, the then D. S. P.
Headquarters, Gujrat, stated that according to his investigation, he found accused Nazar and Inayat innocent and accord--ingly he had directed the Investigating Officer to show that names of these two persons in column, No. 2 of the challan. It transpires that many persons appeared before Agha Farasat Ali and the Investigating Officer to prove innocence and alibi of the said Nazar. After his death, now the burden is sought to be thrown upon him. It has also been vehemently argued on behalf of the appellants that blood-stained earth was collected from near the Toka machine and from the platform of the mosque at the Dera of the accused party. This fact according to the appellant's contention further lends support to the defence version that as a matter of fact the complainant party were the aggressors; they lodged assault at the Dera of the accused where Niaz Ali appellant received injuries at their hands and Nazar deceased fired with pistol in self-defence at Muhammad Siddique deceased who subse--quently died of the fire shot injuries. This version that the complainant party in fact lodged assault at the Dera of the accused does not sound the reasons because they could not have lodged the assault empty banded and in case they were armed even with Sotas only; they would have caused injuries to other members of the accused party in addition to Niaz Ali whose injuries as a result of medical examination were found to be merely 3 abrasions of simple nature which can of course be self-suffered. Moreover, all the members of the complainant party namely, Nazir, Bashir, Sharif and Siddique deceased suffered serious injuries and Siddique ultimately died of fire-arm injuries. Injuries of such a nature to four members of the com--plainant party could not possibly be suffered at the hands of Niaz Ali and Nazar deceased who allegedly caused fire-arm injuries only to Siddique. The collection of blood- stained earth- from two spots at the Dera of the accused may be the result of dishonest investigation on the part of the Police or fabrication of defence on the part of the accused.
23. Nazir Ahmad, Muhammad Sharif and Bashir Ahmad, eye-witnesses, are admittedly the real brothers of Muhammad Siddique deceased but they are injured P. Ws. And there can be no doubt about their presence at the time of occurrence. They are thus natural witnesses of the occurrence.
Raaia Begum (P. W. 3) is the sister of the deceased and the aforementioned 3 P. Ws. Her presence in connection with cutting of fodder at the time of occurrence is quite probable and natural. As a result of careful and con--sidered analysis of the intrinsic worth of the statements of these P. Ws.
We find that the same ring true.
24. From the testimonies of the aforementioned four P. Ws. Who furnished the eye-witness account of the occurrence, it is sufficiently estab--lished that Muhammad Siddique deceased died at the hands of Muhammad Aslam appellant who fired fatal shot with revolver at him resulting in his death. Obviously the other appellants who while firmed variously formed an unlawful assembly with Muhammad Aslam aforesaid who was armed with revolver and lodged an assault on the deceased and P. Ws. 7, 11 and 12 are presumed to have the common object of causing death of the deceased and grievous and simple injuries to other victims of their assault.
25. In this view of the matter, we uphold the conviction and sentence of the appellants as recorded by the learned trial Judge. Their appeal is accordingly dismissed.