GHAZANFAR ALI GONDAL, J.-Ismail son of Gulab Din, aged 50 years, and his wife's brother Abdul Hamid son of Barkat Ali, aged 25 years, both Mashki by caste, residents of Chak No. 205/GR, Police Station Sammundri, District Faisalabad, were tried by the Sessions Judge, Faisal--abad, for offences under section 302/307/34, P. P. C. For committing, in furtherance of their common intention, the murder of Abdul Hamid and for making murderous assault on Liaqat P. W. The Sessions Judge vide his judgment dated 17th October, 1973, acquitted the accused of the charges under section 302,1307/34, P. P. C. This is a State appeal against the acquit--tal of the respondents.
The complainant has also filed a revision (Criminal Revision No. 475 of 1974), which is not yet admitted to regular hearing. This judgment will dispose of both the matters.
2. According to the prosecution story, as disclosed in the prosecution evidence, Muhammad Ramzan, father of Abdul Majid (P. W. 10) and Abdul Hamid deceased is the owner of about 61 killas of land in Chak No. 205/GB, Tehsil Sammundari, District Lyallpur and is also the owner of about three squares of land in village Kharianwala, District Sheikhu--pura. Abdul Majid P. W. 10 and Abdul Hamid deceased resided in Chak No. 205/GB. Respondent Ismail and Abdul Hamid are Mueens in this village. Sometimes before the occurrence, Abdul Hamid deceased and Abdul Majid P. W. Had employed Muhammad Ramzan aged 9/10 years, son of Ismail respondent, as a servant for putting fodder to their cattle. A day prior to the occurrence, Muhammad Ramzan did not turn up for performance of his duty and deceased Abdul Hamid had called Ismail respondent to his house and enquired from him the reason why Ramzan had not come on duty and thereupon Ismail had promised that Ramzan will attend his duty next day and if he does not turn up, he (Ismail) himself would come. Razman did not turn up even on the day of occurrence i.e. 15th June, 1971. Abdul Hamid deceased wanted to go to Torianwala on that day to purchase a shoe while Abdul Majid P.
W. Wanted to go to Kharianwala. On coming to know that Abdul Hamid deceased was also to go to Torianwala, Abdul Majid at about 7-00 a.m. On 15th June, 1971, asked Abdul Hamid deceased to get Muhammad Ramzan and put him on his duty so that the work may not suffer in their absence.
Thereupon, Abdul Hamid in the company of Liaqat P. W. Who had also come to their house went to the house of Ismail to fetch Ramzan therefrom, while Abdul Hamid went to the house of Muhammad Rashid (P. W. 12), as Muhammad Rashid was to accompany him to Kharianwala. There when he called Muhammad Rashid and Muhammad Rashid had come out of the house, they heard noise coming from the lane in front of the house of Ismail respondent. The two rushed towards the house of Ismail and saw Ismail giving knife blows to Abdul Hamid deceased upon which Abdul Hamid deceased fell down in the street. They also saw Abdul Hamid respondent giving a knife blow to Liaqat P. W. Who was injured in his right thigh. Thereafter, the respondents, with their blood-stained chhuris. Had gone inside their own house. They had also taken away into their house the licensed rifle of Abdul Hamid deceased after taking it of the shoulder of said Abdul Hamid.
Abdul Majid P. W. Had gone near Abdul Hamid but had found him dead. On injury Liaqat Ali P. W.
Who was accompanying Abdul Hamid deceased had explained that after they had knocked the door of house of Ismail respondent, respondents Ismail and Abdul Hamid had come out and deceased Abdul Hamid enquired from Ismail as to why he had not sent his son Ramzan to work in their house as promised on the previous day and on this Ismail reason--dent had told the deceased that his son Ramzan was not willing to serve him and on this deceased asked Ismail respondent if his son was not will--ing to do the work, then he should himself work in his place as promised by him. He had also told him that only a few days back, he had received money and food grains for service of his son and now he should either send his son or himself come to perform duty on his behalf. Ismail reason--dent had, however, refused to accompany the deceased and this led to exchange of hot words and both the respondents had attacked the deceased and him (Liaqat P.
W.) and had inflicted above said injury.
3. Abdul Majid P. W. Entrusted the care of dead body of Abdul Hamid to Sardar Khan his uncle and himself proceeded to the Police Station Sammundari which is situated at a distance of 16 miles from the place of occurrence and had lodged there the F. I. R. Exh. P. B. At 10-00 a.m. The said F. I. R.
Was recorded by Nazar Hussain A. S. I. (P. W. 14). Since the S. H. O. Sher Muhammad (P. W. 13) was not available at that time in the police station, Nazar Hussain A. S. I. Himself proceeded to the spot for investigation. On reaching the spot at about 12-00 noon he found the dead body of the deceased lying in the lane passing in front of the house of Ismail respondent. He prepared the injury statement Exh. P. L. And inquest report Exh. P. M. And despatched the dead body to the mortuary for post-mortem examination. The A. S. I. Took into possession blood-stained earth from the spot where the dead body was lying and made it into a sealed parcel vide memo. Exh. P. C., which was witnessed by Ghulam Ahmad (P. W. 8) and Allah Ditta (P. W. 9). He also took into possession the licence P. N. Of the rifle of the deceased which was produced before him by Abdul Majid P.W. Vide memo. Exh. P. F./l. Liaqat Ali P. W. Who was injured had gone to Rural Dis--pensary in adjoining village namely, Chak No. 210/GB and got himself medically examined. The said A. S. I.
Went to said Dispensary on the next day viz. 16th June, 1971 and took into possession chaddar P. 1 of Liaqat P. W. Vide memo. Exh. P. D. The said chaddar was blood-stained and had a cut corresponding to injury on the right thigh of Liaqat P. W. Memo. Exh. P. D. Was witnessed by Ghulam Ahmad P. W. 8 and Muhammad Ashraf, Constable P. W.
4. In the meantime, Sher Muhammad S. H.
O. (P. W. 13) reached the spot on 16th June, 1971 and took over the investigation from Nazar Hussain A. S. I., who gave to him the sealed parcels containing blood-stained earth. Sher Muhammad S. I. P.
W. 13 thereafter investigated the case. The respondents appeared before him voluntarily on 16th June, 1971, in the presence of Ghulam Ahmad P. W. 8 and Allah Ditta P. W.
9. The wearing clothes of these respondents were blood-stained and, therefore, Sher Muhammad got their clothes viz. Chaddar P. 2, shirt P. 3 and salooka P. 4 of Ismail respondent and dhoti P. 5, and shirt P. 6 of Abdul Hamid respondent removed from their persons and made them into separate sealed parcels and took them into possession vide memo. Exhs. P. G. And P. H. He interrogated Ismail who led to the recovery of blood-stained knife P. 7 and rifle P. 8 from beds lying on the cot in his house. The said knife was reduced into sealed parcel and taken into possession by memo. Exh. P. E. The rifle P. 8 was taken into possession vide memo. Exh. P. F. These recoveries were also made in the presence of P.
W. 8 Ghulam Ahmad and P. W. 9 Allah Ditta. On the same day, Muhammad Siddique F. C. P. W. 5 produced the last worn clothes of the deceased and ring and currency notes of Rs. 11 which the doctor had handed over to him. The said S. I. Took these into posses--sion vide memo. Exh. P. J/2.
The said Sub-Inspector gave four sealed parcels, one containing blood-stained earth, other one containing knife and two containing the clothes of the respondents to Sher Ali Muharrir A. S. I. P. W. 6 on 17th June, 1971 for keeping them in Malkhana and their sub--sequent onward transmission to the office of the Chemical Examiner, Lahore. The said sealed parcels were sent to the said office on 24th June, 1971 through Muhammad Ashraf P. W.
4. The reports Exh. P. O. P. Q., P. R. And P. S. Of the Chemical Examiner and Exhs. P.T.P. U., PV. And P. X. Of the Serologist show that the earth, dhoti taken into possession from Abdul Hamid respondent and dhoti, shirt and salooka taken into possession from Ismail were stained with human blood. However, so far as knife P. 7 is concerned it was found by Chemical Examiner to be stained with blood, but the report of Serologist was that due to disintegration of the blood on the said knife, its origin could not be determined. After the usual investigation the respondents were challaned.
4. In order to establish the case, the prosecution produced 12 witnesses. The depositions of Dr. Muhammad Riaz Ali, Medical Officer, before the Committing Magistrate in regard to post-mortem examination of Abdul Hamid and that of Dr. Iqbal Chaudhry, in regard to injury of Liaqat Ali P. W.
Were transferred to the Session file under section 509, Cr. P. C. And statements of P. W. I and P. W. 2.
On external examina--tion Dr. Riaz Ali had found the following injuries on the person of Abdul Hamid deceased
(1) A stab wound. 1--" x -- x deep 3" left to the umbilicus, peritoneum was protruding out of the wound.
(2) A stab wound 1" x 1/3" x deep 2", below the left nipple.
(3)A stab wound, 1" x --" x deep on the front of the neck, 2' above upper and of sternum.
(4)A stab wound, 1" x " x 11", in front of the right shoulder.
(5)A stab wound, 1" x 1/3 " x 1--", on back of the left arm at upper end.
On dissection of the dead body, the pericardium at point corresponding to injury No. 2 was found injured and full of blood; left ventricle was also found injured at the same point. On opening the abdomen, its wall and peritoneum corresponding to injury No. 1 was found injured. Stomach was empty and healthy. Small intestines were empty and cut at two points. In the opinion of the doctor, death was caused due to shock and haemorrhage as a result of multiple injuries. Injuries Nos. 1 and 2 were declared dangerous to life and sufficient to cause death individually and collectively in the ordinary course of nature. Injury No. 3 was declared grievous and the rest simple. All the injuries were declared to have been caused by sharp-edged weapon. Probable time between injuries and death was instantaneous and between death and post-mortem examination was between 24 hours.
On examination of Liaqat Ali P. W. On 15th June, 1971, at 8-30 p. m. Dr. Iqbal Chaudhry found a stab wound --" x 1/3" x 1/3" on the middle of upper side of the outer side of the right thigh which was directed from back to the front. The injury was declared simple caused by sharp edged pointed weapon within about 12 to 18 hours.
5. Recovery evidence in the case in respect of bloodstained earth, knife P. 7 and rifle P. 8 and the wearing clothes of the respondents and chaddar of Liaqat Ali P. W. Was furnished by Ghulam Ahmad P. W. 8, Allah Ditta P. W. 9, Muhammad Ashraf Constable P. W. 4 and two investigating officers who appeared as P. Ws. 13 and 14. They fully sup--ported the prosecution in respect of these recoveries.
6. Ocular evidence in this case was furnished by Abdul Majid, Liaqat Ali and Muhammad Rashid as P. Ws. 10, 11 and 12. All the three witnesses supported the prosecution version. Abdul Majid is the complainant and brother of the deceased. He also gave the above account of the facts which bad led to the said occurrence. Liaqat Ali P. W. Is injured. He was accompanying Abdul Hamid deceased and, therefore, besides the ocular evidence of the actual infliction of injuries, he also gave the details of the conversation between Ismail respondent and Abdul Hamid deceased which had taken place before the actual occurrence. P. W. 10 Abdul Majid and P. W. 12 Muhammad Rashid also deposed in regard to the details of said conversation furnished to them by Liaqat Ali P. W.
Immediately after the occurrence.
7. As already shown, investigation in this case was partly conducted by Nazar Hussain A. S. I. And partly by Sher Muhammad S. I. They appeared respectively as P. Ws. 14 and 13. Their statements accord with the details of the investigation given above.
8. After the close of the prosecution evidence, the respondents were examined. They admitted their relationship inter se. In his examination under section 342, Cr. P. C. Ismail respondent denied his guilt and in reply to question as to why the case had been brought against him, gave the following statement :- ---Due to enmity. About sargiwela, the deceased came to my house armed with rifle and he tried to forcibly abduct my younger daughter Parveen. My brothers Allah Rakha and Abdul reside with me. They inflicted injuries to rescue my daughter and I have been falsely involved in the case.
Abdul Hamid died in my house and his dead body was taken by the police from my house. The deceased even fired few shots to kill my family. The rifle was also taken by the police lying near the dead body.--- Abdul Hamid respondent, however, did not say so, and after denying his complicity in the said offences, he only said that the case against him had been brought due to enmity with the P. Ws. He did not give the details of the said enmity. The respondents did not produce any evidence in defence.
9. Learned Sessions Judge disbelieved the- basic circumstance of Ramzan having been engaged as a servant of Abdul Majid on the ground that he was a by of the age of 9/10 years only and was not, therefore, in a position to perform the strenuous job of putting fodder to the cattle. H e also disbelieved the prosecution version that on 14th June, 1971, the deceased Abdul Hamid had called Ismail in his house and enquired from him as to why his son had not turned up for duty on the ground that it had not been proved and that it was an afterthought as it had not been stated in the F. I. R. He disbelieved the ocular evidence of all the three P. Ws. On various grounds. He disbelieved the evidence of the recoveries also. Furthermore, he found that the defence plea was not absurd or ridiculous and was to some extent supported by the medical evidence to the effect that stomach of deceased was empty and by the circumstance that deceased was carrying his licensed rifle when he went to the house of Ismail respondent and by the further circumstance that according to the investigating officer, some persons had deposed before him that a few shots had been fired during the occurrence. He held that deceased might have disgraced the accused and inmates of the house including women and even the possibility of his having resorted to firing on account of refusal of Ismail to accompany him could not be ruled out. In his view, therefore, right of self- defence was available to respondents. After having come to this finding he proceeded to hold that prosecution had failed to bring home the guilt of the respondents beyond reasonable doubt and acquitted res--pondents by giving them the benefit of the doubt.
10. We have heard Mr. Muhammad Rafiq Butt, Advocate, learned counsel appearing on behalf of the State and have also heard Mr. Ghulam Murtaza, Advocate, learned counsel on behalf of acquitted respondents.
From the details given above, it is clear that in this case, there are two counter-versions, one furnished by prosecution and the other by Ismail respondent. The killing of Abdul Hamid deceased is accepted by res--pondent Ismail. The difference in the two versions is as follows :- (1)In regard to actual place of occurrence. The prosecution case is that it happened in the street passing in front of the house of res--pondent Ismail while the case of respondent Ismail is that it hap--pended inside his house.
(2)In regard to persons who actually inflicted injuries with knives to the deceased, the prosecution alleges that it were the respondents who did that while the case of respondent Ismail is that persons who inflicted the injuries to the deceased were Allah Rakha and Abdul who according to Ismail respondent resided with him in the same house and that he had been falsely involved.
(3)In regard to the circumstances in which such injuries were given. The prosecution alleges that these were inflicted when Abdul Hamid pressed Ismail respondent to come for work of putting fodder to their cattle when his son Ramzan was refusing to do that service and on his refusal to accompany him, there was exchange of hot words while the case of the respondents in defence is that they had been implicated falsely due to enmity and that actually deceased had at sargiwela come to Ismail's house armed with a rifle and had tried to forcibly abduct his younger daughter Parveen and had even fired a few shots to kill his family and that his brothers Allah Rakha and Abdul had inflicted injuries upon the deceased to rescue his daughter.
The respondents have not produced any witnesses in defence to establish their plea. Therefore, we are constrained to scan the prosecution evidence to find out if the said plea stands established or at any rate any doubt stands created in the truth of the prosecution story detailed in pro--secution evidence or in answers elicited in cross-examination of witnesses of prosecution conducted on the basis of defence plea and other judicial material on record or on the other hand the story ;of the prosecution stands proved beyond any shadow of doubt. For that purpose we have to take up first assessm ent of the evidentiary value of the statements of prosecution witnesses.
11. An important feature of this case is that there is no enmity between the prosecution witnesses, who gave ocular account and the respondents. Thus, none of them have any motive to falsely implicate the respondents. It is no doubt true that Abdul Majid P. W. Is brother of the deceased and two other eye-witnesses are Jat Randhawas i.e. They belong to the brotherhood of the deceased, but it is now settled that mere relationship or the mere fact that witnesses belong to brotherhood of deceased or complainant is no ground to discard their evidence. There being no dispute that previously there was no enmity between parties, we find that all the said three witnesses were disinterested and their evidence could not have been discarded on the ground that one is a real brother of the deceased and other two are from brotherhood of the deceased and the complainant. The rejection by the Sessions Judge of the testimony of these witnesses on this ground is opposed to the principles laid down by superior Courts for appreciation of evidence of the witnesses. Further--more, the evidence of all those witnesses is consistent on all the material points and discrepancies, if any, are only in respect of minor details and are, therefore, of little consequence.
12. Taking the case of each eye-witness, we do not find any valid reason to disbelieve the statement of Abdul Majid P. W. On the point that Ramzan, aged 9/ 10 years, son of Ismail respondent was engaged by deceas--ed and Abdul Majid as a personal servant to put fodder to their animals and that on account of his absence from duty, a day earlier the deceased had called respondent Ismail where he had promised either to send Ramzan or to come himself to work in his place if Ramzan did not turn up. In our view, by of 9/10 years can undertake the job of putting fodder to animals and it is common knowledge that boys of this age are quite cap--able of performing and usually perform such functions in villages. In the cross-examination of this witness there is no suggestion by the defence itself that Ramzan was not in a position on physical plane to perform the duty of putting fodder to the animals or that he had not been engaged by Abdul Majid P. W. As a personal servant to do the said job. The learned Sessions Judge outdid the defence in holding that Ramzan could not do the job in question. Therefore, statement of this witness that Ramzan had been engaged by him and Abdul Hamid deceased does not deserve to be disbelieved. It is no doubt true that in the F. I. R., Abdul Majid P. W. Had not stated that on account of absence from duty of Ramzan a day earlier, Abdul Hamid deceased had called respondent Ismail to his house and enquired from him as to why his son Ramzan had not come for duty and Ismail respondent had promised that his son would come or he would in place of Ramzan come for duty, but F. I. R. Is not a repository of everything and it cannot be exhaustive of every bit of prosecution story and B absence of a circumstance from it cannot be considered to be contradiction unless it is in derogation of the main story as related in the F. I. R. In the present case, the circumstance that Ismail respondent had been called a day earlier in that connection and had promised either to send the by or come himself does not conflict with the main line of the story as given in the F. I. R.
And its omission from F. I. R. Cannot be considered to be a contradiction. This part of the evidence of this witness is also fit to be believed. Furthemore, there is no doubt that in the examination---in- chief this witness had stated that after deceased and Liaqat left his house, he also left for the house of Rashid P. W. And the moment he called Rashid P. W. He heard some noise coming from the lane passing in front of the house of Ismail respondent and he and Rashid P. W. Who had in the meantime come out, rushed towards the house of Ismail res--pondent and saw the occurrence, while in cross-examination he admitted that before the police he had not stated that when deceased and Liaqat left the house for calling Ramzan, he went to the house of Rashid P. W. And had further admitted that before the police he had stated (in the F. I. R.) that when deceased and Liaqat P. W. Left the house for calling Ramzan, he heard noise coming from the lane passing in front of house of Ismail respondent and he rushed towards that side and on the way he met Rashid P. W.
Who accompanied him to the spot, but the two state--ments disclose discrepancy only in the manner of reaching the spot and in the manner of Rashid P. W. Accompanying him to the spot and do not in any way show that he had not reached the spot at the time of infliction of injuries and had not seen the actual occurrence. Such like discrepancies are natural and are to be expected when actual evidence is recorded after a lapse of two years of the actual occurrence. In any way, even if the said portion of the Court statement is considered to be an improvement which may be said to have been made in order to show that he was avail--able near the place of occurrence wherefrom he could hear the noise emanating from near the house of Ismail respondent and due to that his statement in regard to ocular account is discarded, even then the said account relied upon by prosecution stands established from statements of other P. Ws. Namely Liaqat P. W. 11 and Rashid P.
W.
12. So far as Rashid P. W. Is concerned, no question was put to him in respect of the distance of his house from place of occurrence to show that he could not hear noise emanating from the scene of occurrence (place in front of the house of Ismail, respondent) nor was there any suggestion that his house was too far away wherefrom he could not hear the noise raised at time of altercation before actual infliction of injuries and that, therefore, he could not reach the place of occurrence in time to see the occurrence. On the other hand, it was from P. W. 10 Abdul Majid that question was asked in respect of the distance of his house from the place of occurrence. Even from Abdul Majid P. W. No question was asked in respect of distance of house of Rashid P. W. From the place of occurrence nor was a suggestion given to him that house of Rashid P. W. Was situated at a distance from where the noise emanating from place of occurrence could not be heard. The trend of cross-examination of Abdul Majid, therefore, is calculated to set up a case on behalf of the defence that house of Rashid P. W. Is nearer the -house of Ismail respondent wherefrom the noise coming from the place of occurrence could be heard. The rejection by the Sessions Judge of the evidence of this witness is, therefore, unreasonable. Furthermore, the suggestion that deceased Abdul Hamid was his collateral and he had not seen the occurrence and had made a false statement at the instance of relatives of the deceased was denied by him. There is, therefore, nothing on record which impinges upon the credibility of this witness.
13. As for Liaqat Ali P. W. 11, his statement that he accompanied the deceased from the house of the deceased to the house of Ismail reason--dent is consistent with first version as given in the F. I. R.
Furthermore, another important circumstance in respect of this witness is that he had no enmity with the respondents and bad thus no motive to falsely implicate them. About him one additional factor of almost decisive nature is that he was injured and, therefore, there can be no doubt that he was present at the spot. The suggestion of the defence that the injury on his thigh was got inflicted by a friendly hand does not appeal to reason, No doubt the doctor bad stated in his cross- examination that this injury might be caused by a friendly hand, but it must be noted that it is only a close relative of the complainant party or a sworn enemy of the respondents who could get his thigh pierced through by a friendly hand in order to support the prosecution version, but not Liaqat Ali who had absolutely no relationship with the complainant or enmity with the respondents. The mere statement by the doctor that this injury may have been caused by a friendly hand is therefore, not by itself sufficient to discard the ocular account of the occurrence, as furnished by this witness. In. Cross-examination Muhammad Rashid had stated that he had stated before the Committing Magistrate as well as before the Police that Liaqat P. VV. Had received an injury on the right thigh and the learned Sessions Judge recorded that he had been confronted with his statement Exh. D. B. Under section 161, Cr. P. C. And also his statement before the Committing Magistrate where according to him it was not so recorded. However, Exh. D. B. Is not a statement of Muhammad Rashid P. W. Before the Police. Exh. D. B. Is a supplementary statement of Abdul Majid F.
W. Furthermore, the statement of Muhammad Rashid P. W. Before the Police was not got proved from A. S. I. Nazar Hussain P. W. 14, who had recorded the said statement. There was thus no proper confrontation. Further in the statement before Committing Magistrate, Muhammad Rashid P. W.
Had clearly stated that he had seen Abdul Hamid respondent inflicting a knife blow to Liaqat P. W.
The mere fact that he had not specified therein that injury had been caused on the right thigh is of no consequence and therefore, statement of Muhammad Rashid F. W. That Liaqat P. W. Had received an injury in the thigh is not in conflict with statement to that effect of Liaqat P. W. And is rather corroborative of the factum of Liaqat P. W. Having been injured in thigh in the said occurrence.
14. About the conduct of Liaqat Ali in not appearing before the Police and going to his house and then proceeding from there to the Dispensary in the adjoning Chak No. 210/GB and not appearing immedia--tely before the Police, relied upon by the Sessions Judge, in our opinion, it cannot be considered to be unnatural It depends upon the nature of a person who has received the injury.
Some may stick to the place of occurrence and get their evidence recorded before they got their injuries treated; others may prefer to get their injuries treated first and get their statements recorded later. Injury even though it was a simple one was at any rate, an injury with sharp-edged and pointed weapon and it is quite probable that the said witness thought it more important to go first to the doctor and get his injury treated and then make a statement before the investigating officer, especially when the Dispensary at Chak No. 210/GB was not very far away and was at a distance of 11 miles only. The said conduct cannot conclusively be considered to be a conduct detracting from his credibility as an eye-witness to the said occurrence. There is, however, a part of his statement which comes into conflict with the statements of other eye-witnesses. According to Liaqat Ali P: W., the deceased was attacked by both the respondents and given knife blows while he (Liaqat Ali) had been given an injury by Abdul Hamid respondent. He had, however, not stated before the Police that respondent Abdul Hamid had given an -injury to the deceased. He was confronted with his Police statement wherein it was not so recorded. Therefore, in the interest of safe administration of justice, we would not like to rely on that part of the testimony of Liaqat Ali P.
W. Which imputes infliction by Abdul Hamid respondent of knife injuries to the deceased.
15. All the three eye-witnesses are unanimous that it was in the street passing in front of the house of the respondent Ismail that Abdul Hamid deceased was given knife injuries by respondent Ismail which resulted in his death and Liaqat P. W. Was injured by respondent Abdul Hamid by means of a knife. It is, therefore, established that respondent Ismail is responsible for taking the life of Abdul Hamid and respondent Abdul Hamid is to blame for causing hurt to Liaqat Ali P. W.
16. As for the recoveries, learned Sessions Judge has disbelieved the recovery from the respondents of blood-stained clothes on the ground that it was wholly improbable that they should have kept wearing incriminating clothes around them even on the second day of occurrence. This, how-- ever, is an argument which can be advanced in every case of recovery of such incriminating articles and is not conclusive for coming to the finding that said recovery is false. The question whether it was improb--able or not for them to keep up wearing blood-stained clothes depended upon the circumstances as to whether opportunity was available to them to change or destroy the incriminating clothes or not. It was not noted by the learned Sessions Judge that it is in the evidence in cross-examination of Abdul Majid P. W. That when he (Abdul Majid P. W.) had returned to the spot with the police he came to know that the accused had fled away from the house. The fact that the respondents had made themselves scarce after the occurrence is an additional circumstance against them. It appears that the respondents had no opportunity to change their clothes or wash them, because, as with all accused persons, they must have left their house immediately after the occurrence to save themselves from being apprehended. They had killed a Zamindar of the village and they being mueens of the village could not have been given quarter in the village or even outside unless there was a relative of theirs there to assist them to change their clothes. They could not have washed or destroyed their clothes unless there was another pair available to each of them. The learned Sessions Judge did not take into consideration almost insuperable difficulty in the way of the respondents to change or wash their clothes in these circumstances. Over and above that, it is in evidence of P. W. 8 Ghulam Ahmad, P. W. 9 Allah Ditta and P. W. 13 Sher Muhammad S. I. That both the accused appeared before him voluntarily. It is not uncom--mon phenomenon to note the accused persons appearing voluntarily before the police on account of compunctions of their conscience. In this view of the matter, we are inclined to rely on the recovery of the blood-stained clothes from the respondents.
17. The learned Sessions Judge disbelieved the recovery of knife P. 7 and rifle P. 8 from underneath the beds on the pointation of respondent Ismail on the ground that Allah Ditta P. W. 9 had admitted in his cross--examination that a day earlier, house of respondent Ismail had been search--ed and obviously nothing had been found therein. The learned counsel for the State has contended that there is nothing on record to show that the said search was to recover the weapons of offence and since the first concern of the Police was to arrest the accused persons the said search could be only for the purpose of finding out of the respondents and apprehending them and taken in this light the recovery of knife and rifle as deposed to by recovery witnesses was not improbable. We, however, would not like to go into the matter as the blood on the recovered knife was found disinteg--rated and was not established to be of human origin while the recovery of rifle by itself was not incriminating. The recovery of 'the said weapons would, therefore, not be taken into consideration by us in determining the guilt or otherwise of the respondents.
18. The learned Sessions Judge has disbelieved recovery of blood--stained earth also from the street passing in front of house of Ismail respondent. He did so mainly on the ground that both the recovery witnesses belong to the brotherhood of the deceased and that Ghulam Ahmad P. W. 8 is not resident of Chak No. 205/GB and his statement in examination-in-chief in that regard comes into conflict with his statement in cross-examination regarding the manner and sequence of recovery. However, as pointed out earlier it is now almost settled that the mere fact that the witnesses belong to the brotherhood of the deceased or are even related to deceased is not valid consideration to disbelieve their statements specially when the said witnesses have no prior enmity with the person against whom they are deposing and have no motive to implicate him falsely. The said recovery witnesses are wholly independent and disinterest--ed witnesses and have no reason to falsely implicate the respondents and their evidence could not have been brushed aside on the mere ground that they belong to the same brotherhood as the deceased. So far as Ghulam Ahmad P. W. 8 is concerned, his place of residence is the adjoining village, namely, Chak No. 210/GB which is situated at a distance of a mile and a half from Chak No. 205/GB wherein occurrence took place and, there--fore, it is not improbable that he was present at the time of the recovery of the blood-stained earth from the spot. His respectability had not been challenged.
Furthermore, the observation of the Sessions Judge that state--ment of this witness in examination-in-chief and cross-examination is con--flicting is based upon misreading of his statement as a whole which already shows that blood-stained earth was taken into possession on the day of occurrence in Chak No. 205/GB and the chaddar of Liaqat P. W. Was taken into possession on the next day in the Dispensary in Chak No. 210/GB from where he had come alongwith the Police to Chak No. 205/GB where res--pondents appeared before the Police and their clothes were taken into possession and knife and rifle were recovered. Other discrepancies pointed out by the learned Sessions Judge are minor and of little consequence in relation to the question of recovery of blood-stained earth from the spot. It is also noteworthy that besides Ghulam Abmad P. W. 8, there was evi--dence of Allah Ditta P. W. 9 and Nazar Hussain A.S.I. P. W. 14 on the question of recovery of blood-stained earth which was fully consistent and unexceptionable. The finding of the Sessions Judge in respect of recovery of blood-stained earth from a place in the street passing in front of the house of Ismail respondent is not only unreasonable but also perverse.
19. Now turning to the defence plea, we find the following sentences in the statement in cross- examination of Abdul Majid P. W. 10, recorded on 16th October, 1973 :- "I do not remember whether Ismail accused has two daughters named Parveen aged 18/19 and Mst. Rani alias Gudo aged 14;15 years. It is incorrect to suggest that at about 2 or 3 a. m. The deceased tres--passed while armed with rifle P. 8 in the house of Ismail accused and attempted to forcibly abduct Mst. Rani the daughter of Ismail accused and even caught her from her ponny tail and dragged her she raised hue and cry and inmates including Ismail fell upon the deceased, who fired shot with his rifle and inmates of the house caused him injuries inside the house of the accused to foil the attempt of the deceased and he was killed inside the house of Ismail accused."
It is clear that at the time when evidence was being recorded on 16th Octo--ber, 1973, the case of respondents was that the girl regarding which an attempt to abduct was made was Mst. Rani, younger daughter of Ismail respondent. However, when later, on the same day statement of Ismail respondent under section 342, Cr. P. C. Was recorded, he described the daughter forcibly tried to be abducted as his younger daughter Parveen. Furthermore, the time in the suggestion given in the statement, in the cross--examination was 2/3 a. m. While m statement under section 342, Cr. P. C., it was sargiwela. Thus the name of the girl was changed from Mst. Rani (given in the suggestion) to Parveen (given in statement of respondent Ismail under section 342, Cr. P. C.) and time when any of them was tried to be abducted was changed from 2/3 a. m. To sargiwela. Therefore, the instructions given to the counsel were different from the actual plea raised by respondent Ismail and that takes the wind out of the defence plea. It is also to be noted that if Mst. Rani or even Mst.
Parveen had been dragged for the purpose of forcible abduction, then she must have got some abra--sions or bruises or a scratch on her body and, therefore, her medical certifi--cate should have been produced but as we see it, none was placed on the record. Neither of his two daughters had appeared as a defence witness to support the plea of abduction. It is no doubt true that Abdul Majid P. W. Had admitted in his statement in cross-examination that Ismail res--pondent had two grown up brothers named Allah Rakha and Abdul, but he denied the suggestion that they resided with Ismail and on the other hand stated that Ihata of said brothers of Ismail respondent was situated on the other side of village abadi. In the circumstances, there was little possibility of said brother being available in the house of Ismail respondent at 2/3 a.m. At the dead of night or even at sargiwela. Moreover, the said plea was never put to Liaqat Ali P. W. As for Muhammad Rashid P.
W., he denied that he had stated before the Police that these people were not telling the truth that they murdered in self-defence. However, he was con--fronted with Exh. D.B., which was not Police statement of said Muhammad Rashid. Moreover, said Police statement of Muhammad Rashid was never got proved from Nazar Hussain A. S. I. Who had appeared in evidence as P. W.
14. Thus the defence plea does not find even an indirect support from the prosecution witnesses who gave ocular account of the incident. Furthermore, the defence plea postulates that the occurrence took place in the courtyard of the house of Ismail respondent. However, besides the evidence of the eye-witnesses, who stated that occurrence took place outside the house of Ismail respondent at a place situated in the street passing in front of house of Ismail respondent, the blood-stained earth, as found by us already, was collected from the lane passing in front of the house of Ismail. A suggestion given to Allah Ditta P. W. 9 and Nazar Hussain A. S. I. P. W. 14 that as a matter of fact the dead body was lying inside the house of Ismail respondent with rifle lying over it and that the blood-stained earth was also collected by the Investigating Officer from there, was denied by them. All this gives a lie to the plea of abduction raised in defence.
20. Great stress was laid by the learned counsel for the respondents on the circumstance that P. W.
13 Sher Muhammad S. I. Had stated that some persons had appeared before him and stated that there was firing at the time of occurrence from the rifle of the deceased and that there was one shot fired at the time of occurrence and this supported the statement made by Ismail respondent and created a doubt in the truth of the prosecution story. However, the alleged circumstance of firing is not borne out by any evidence on record. The said investigating officer was not an eye- witness to the alleged firing and therefore, if some persons had stated before him regarding firing having been resorted to at the time of occurrence, the said persons should have been produced at the trial. It appears that none of the said persons had actually heard or seen the said firing themselves and therefore they had not been cited as prosecution witnesses. None of them was produced in defence either. According to the Investigating Officer who had wanted to check up the correctness of the statements made before him by said persons, he had tried to search for the empty but none had been found in the house of the respondents. The suggestion that an empty was found in the house of Ismail respondent but suppressed, had been denied by Nazar Hussain A.
S. I. P. W.
14. Nazar Hussain A. S. I. Had no motive to suppress an empty and thus deprive the respondent of his lawful defence and create circumstances for false implication of the respondents and, therefore, his evidence cannot be doubted in that regard. Furthermore, the case of respondent Ismail was that deceased had fired at the inmates of the house to kill them and not that deceased had fired in the air to scare away the protectors of the girl. A lead bullet should, therefore, have been found from the house of respondents but obviously none was found by the said A. S. I. When he searched the house of respondent Ismail for the empty. It was not alleged by the respondent Ismail in his statement under section 342, Cr. P. C. That any bullet was recovered from his house, nor any suggestion was given to Nazar Hussain A. S. I. P. W. 14 that a bullet was found and had been seized by investigating officer and had been suppressed. Further no fire-arm injury to any- inmate of the house of respondent Ismail was shown nor any bullet mark on any wall of his house or any household article of his, was alleged by the defence. We are, therefore, unable to believe that the deceased had fired his rifle before he was killed.
21. In regard to the rifle of the deceased it was also urged by learned counsel for the respondents that it was most improbable that the deceased carried the rifle without any ammunition which as remarked by Sessions Judge, amounted to carrying weight for nothing and, therefore, the deceased was also carrying ammunition and that supported the defence story; we have considered this aspect of the matter as well. Apart from the fact that no empty or lead bullet was recovered from the house of respondent Ismail, Nazar Hussain A. S. I. Denied the suggestion that he found the bandolier of the rifle with bullets fixed therein and that he bad given the same to relatives of the deceased and therefore, on the evidence on record, the deceased Abdul Hamid had been established to have come to the house of respondent Ismail carrying a gun without any ammunition and there is nothing to show that he had ammunition avail--able with him. In addition, it is worth noting in this connection that the deceased-was a Zamindar and had gone to the house of a mueen to get his son Ramzan or get him (the said mueen) in place of his said son to work for him and his brother for feeding their cattle during the expected absence from the village of two brothers and it appears that he carried the rifle with him just to make a show that he was having rifle so that said res--pondent be scared into submission just on seeing the rifle and send his son or agree to come himself. From our experience of the things, we know that members of rural landed aristocracy sometimes carry arms to raise their prestige or create their image or just to satisfy their vanity in order to show that besides land, they are owners of fire-arms as well and if that alone is the motive for such a village Zamindar to carry an arm then it is not necessary to carry any ammunition. In the present case this appears to be the purpose of the deceased in carrying his rifle with him. In the circumstances, the mere fact that the deceased has carried rifle with him while going to the house of respondent Ismail does not make the defence story probable and plausible.
22. As for the observation of the learned Sessions Judge that if the deceased had to go to Torianwala, he would have come out of his house after taking the breakfast but according to the post-mortem report, the stomach and the bladder of the deceased was empty and, therefore, the occurrence had taken place before Chhahwela and this supported the defence story, it may be stated that according to prosecution witnesses, occurrence had taken place at about 7 a.m. And Chhahwela as commonly known starts at about 9 or 10 a.m. And deceased could take breakfast at any time before that. Further the deceased had come to fetch Ramzan or Ismail and he had to take any one of them to his house and put them to work there before he was to proceed to Torianwala and had yet an opportunity to take his breakfast before actually setting on journey to Torianwala and, therefore, the said circumstances lent little support to the defence version.
23. In view of what has been said above, the opinion expressed by the learned Sessions Judge that -the act of the deceased in going armed to the house of Ismail accused coupled with the fact that he was a Zamindar and the respondent Ismail was a mueen, gives rise to the inference that the deceased might have disgraced the accused and the inmates of his house including womenfolk and even the possibility of the deceased resorting to firing on account of the refusal of the accused to bow before his wishes cannot be ruled out", does not appear to be reasonable. The said inference drawn by the Sessions Judge is on the face of it conjec--tural as it is not supported by any evidence on record. Also, his finding that in such circumstance the right of self-defence was available to the accused is not sustainable as, respondent Ismail had not himself claimed the right of self-defence and in his statement under section 342, Cr. P. C. He had put the responsibility of the killing of Abdul Hamid deceased on the shoulders of his brothers Allah Rakha and Abdul.
Furthermore, in his said observations read together, the Sessions Judge seems to have accepted the prosecution version that Abdul. Hamid deceased had gone to the house of Ismail respondent to fetch Ramzan or respondent Ismail and the respondent Ismail had inflicted fatal injuries to Abdul Hamid deceased. However, the inferences drawn by the Sessions Judge on factual plane having been found to be conjectural and unreasonable, the right of self-defence conceded to Ismail respondent by him stand completely negated. It is also strange that after erroneously conceding to respondents the right of private defence, the learned Sessions Judge acquitted the respondents on the ground that prosecution had failed to C bring home the guilt of the accused beyond reasonable doubt. The former finding is not consistent with the latter and on the other hand shows that the learned Sessions Judge was himself not sure that the respondents has right of self- defence in the circumstances of this case. Furthermore, in our opinion, the killing of deceased having been accepted by respondent Ismail, the failure of the respondent Ismail to show that the defence story was plausible must react on the entire case and give further strength to version of the prosecution witnesses that it were respondents who were respectively responsible for causing death of deceased Abdul Hamid and injury to Liaqat P. W.
24. In our view, therefore, besides the fact that defence version ha neither been established nor has been found plausible, the prosecution story stands proved beyond any shadow of doubt by the three eye-witnesses, recovery of the blood-stained clothes from the respondents and recovery of blood-stained earth from the place in the lane passing in front of the house of respondents as well as medical evidence which fully supports the ocular account of the incident. In view of the above we reverse the finding to the contrary of the Sessions Judge, Faisalabad, and hold that it had been established that knife injuries had been given to deceased by respondent Ismail and one injury on the right thigh of Liaqat P. W. Had been given to him by respondent Abdul Hamid.
25. Ismail respondent gave five stab wounds to the deceased, out of which injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature individually as well as collectively.
Respondent Ismail had, therefore, committed offence under section 502, P. P. C. And we convict him accordingly.
26. However, there is not sufficient evidence to show that in inflicting the said injuries, the respondents had common intention. As already held by us, respondent Abdul Hamid did not inflict any injury on the person of the deceased and had given to Liaqat P. W. Only an injury which he did not repeat. Liaqat P. W. Stated in his examination---in-chief that Abdul Hamid respondent had attacked him when after infliction of injuries by Ismail respondent to Abdul Hamid deceased, he had started raising noise. In cross-examination also he stated that no injury was inflicted by Ismail respondent on the person of the deceased after infliction by Abdul Hamid respondent of a knife injury to him. That means that respondent Abdul Hamid took actual part in the occur--rence later and inflicted injury to Liaqat P. W. So that he should not make noise to collect people and get Ismail respondent apprehended immediately. He had thus no common intention with Ismail respondent to put Abdul Hamid to death. Further, according to prosecution evidence, altercation took place between deceased Abdul Hamid and respondent Ismail alone D and said respondent had run into anger and at the spur of the moment had taken out a knife from his pocket as deposed to by Liaqat P. W. And had begun to inflict injuries on the person of deceased Abdul Hamid without any instigation from respondent Abdul Hamid. Respondent Abdul Hamid is, therefore, liable for his own part alone. We accord--ingly convict him for offence under section 324, P. P. C.
27. As for the sentence, it has to be noticed that respondent Ismail appears to have inflicted injuries voluntarily and without any provocation. There is not an iota of evidence that he had been given any provocation before he started inflicting knife injuries on the person of the deceased. There was no such suggestion by the defence either. However, since we have already held that there was no premeditation on the part of Ismail respondent and he took out the knife from his pocket suddenly at the spur of the moment and gave injuries to Abdul Hamid deceased in the beat of passion, we are inclined to think that maximum penalty of death is not called for in his case., As regards respondent Abdul Hamid, he was arrested on 16-6-1971 and bailed out by the Sessions Judge by his order dated 6-4-1973, and had thus undergone one year, nine months and twenty days of imprisonment. We think that said imprisonment already undergone by him is sufficient in his case.
28. We, accordingly, accept the State appeal against the respondents, set aside the judgment dated 17-10-1973 of the learned Sessions Judge, Faisalabad, acquitting the respondents and convict the respondents Ismail and Abdul Hamid, respectively, of offence under sections 302 and 324, P. P. C. And sentence Ismail respondent to imprisonment for life and fine of Rs. 5,000, or in default to further R. I. For two years and sentence Abdul Hamid to term of imprisonment already undergone by him. The fine if recovered from Ismail respondent would be paid to the legal heirs of the deceased. In view of the provisions of section 382-B, Cr. P. C. We direct that the term of imprisonment already undergone by respondent Ismail as under-trial prisoner shall be deducted from the actual period of sentence to be served by him. He shall be arrested forth--with and sent to jail to serve the remaining period of the sentence imposed by us.
251. As stated earlier, criminal revision filed by the complainant has not so far been admitted to a regular haring. In view of the State appeal and the result thereof, no order on the revision is called for. It is, therefore, disposed of accordingly.