1. SHAFIUR RAHMAN, J.-Leave to appeal was granted to the two convicts, Alimad Ali convicted under section 302, P. P. C. And sentenced to death and Hakim Ali convicted under section 304, Part I and sentenced to life imprisonment, to examine whether it was not a fit case where the conviction of the former should have also been under section 304, Part I and on that happening whether the latter was not entitled to a reduced sentence.
2. ' One Nazir Hussain Shah had been granted Government land Plot No, 48 in Chak No, 84/ML, Police Station, K.Aror, Tehsil Leiah, District Muzaffargarh on instalments. Abdul Jabbar (P. W. 7) was a tenant of that land and at one stage was also the special attorney of Nasir Hussain Shah. By a fresh power-of-attorney executed on 3-7-1973 Nasir Hussain Shah substituted Abdul Jabbar (P. W. 7) by another attorney Shah Muhammad accused. It appears that the grantee had disputed with Abdul Jabbar over the payment of Batai and it was claimed that Mohabbat Ali accused had purchased the grantee's rights in the land. This had led to the legal proceedings. In the first place Abdul Jabbar had instituted a declaratory suit that he was a prior purchaser of the same land which had been sold to Mohabbat Ali by Nasir Hussain Shah but that suit was dismissed. He had then filed a pre-emption suit against the sale. In the meantime an application had been filed by Shah Muhammad his attorney against Abdul Jabbar claiming Batai from him and another application was filed by Abdul Jabbar on 2-7-1975 that there was a dispute amongst the land-owners, that is, Nazir Hussain Shah as well as Mohabbat Ali were claiming landlord's shares from him and he wanted that it should be obtained from him through the revenue agencies and only the rightful owner-landlord be given a share. On both the applications revenue authorities had passed the order directing that the produce should be held in Superdari. On the application of Shah Muhammad the Superdari to a number of persons including Mohabbat Ali was ordered while on the application of Abdul Jabbar, the Qanoongo, circle was ordered to take charge of the produce and to make the distribution of the shares. It was in this background that the occurrence took place on 25th of July, 1975.
3. ' According to Abdul Jabbar (P. W. 7) on the 25th of July, 1975, at about Degarwela he saw a group of i5-16 persons going towards his threshing floor where the work of cleaning and separating the wheat from the chaff was taking place and "Ghundis" were being made out. He had at once started for the Police Station Karor at a distance of about 12 miles, reached there at 6 p. m. And lodged a report which was recorded in the Roznamcha. Among the 16 persons seen by him the two appellants also figured. He got a report recorded in the Roznamcha according to which he made a complaint of the fact that these persons were going to the threshing floor in order to remove the produce from there forcibly. In fact the report which was recorded only mentions that these were the persons who were troubling him about the produce and that he apprehended danger to his life at their hands and wanted that preventive action should be taken.
4. ' At the same time, that is, at Degarwela Khushi Muhammad (P. W. 2) was on his way to his field which was adjacent to the threshing floor where the produce was being attended to. He saw that the ten accused, other than the two appellants and their companions namely Hakim Ali son of Shehab Din and Muhammad Ali, were present with camels, bags and arms like gun and soii and they had come to forcibly put the wheat in the bags, to place them on the camel and to take them away. Muhammad Yusuf deceased and Ahmad All deceased who were attending to the wheat alongwith Yasin (P. W. 4) and Ibrahim (P. W. 5) asked them to desist from doing so and on the dispute taking place within minutes the appellants alongwith their two companions appeared on the scene. Ahmad Din had a spear in his band while his other companions had soils. The appellant Hakim first gave a lathi blow on the head of Yusuf and then Hakim son of Snehab Din gave him a lathi blow on his back and after he had fallen Muhammad Ali gave a lathi blow on his face. Ahmad Din who had a spear in his hand gave the first blow to Ahmad Ali on his back and then a second blow and while he was trying to pull out the spear its handle got separated from the blade. Ameer gave a soti blow to Yasin (P. W. 4) on the back. Thereafter the other group of accused persons removed the wheat. Ahmad Ali died at the spot. Yusuf died on way when he was being removed from the spot and his dead body was brought back. After the accused persons had disappeared from the scene Khushi Muhammad went and lodged the first information report about the occurrence which was recorded a t the police station at 7 p. m.
5. ' In the absence of a Senior Police Officer at the police station the first information report was recorded by Muhammad Ameen (A. S. C. P. W. 10). Shah Alam Khan Niazi (P. W. 11) S. H.
0. Of another police station was deputed to take up the investigation of this case as there was no regular S. H.
0. Posted at Police Station K aror at that time. He was able to reach the spot on the 26th of July, 1975, and attended to the dead bodies and after preparing the injury statement and the inquest report sent the dead bodies for their autopsy. He made the usual recoveries of the blood-stained earth and on arrest recovered sotis from some of the accused and also the bags of wheat which had been removed from the threshing floor.
6. ' The dead body of Muhammad Yusuf had the following injuries- "(1) A contused wound 2.1/2" x 1/2" x bone deep on the top of head, left side, obliquely 5' above the left ear, haematoma of scalp, fracture of both parietal bones extending to the base of skull was present extensive haemorrhage into the brain and skull cavity present. Bleeding from nose present.
7. (2)A contusion 1' x 1" on the right side of forehead just above the inner end of right eye-brow.
8. (3)A contusion mark 5' x 2" on the back of outer side of right chest, obliquely in the middle part."
9. Ahmed Ali's dead body had the following injuries- "(1) A stab wound 2" x 1" abdomen deep of right side of abdomen, lower part inguinal region. Small intestines were protruding out. Small intestines cut. Faeces and blood present in the abdomen corresponding of Kurta, Bunyan and Chadar are cut and bloodstained.
(2) A stab wound 2" x 1/2" x abdomen deep on the outer and lower part of left chest muscle. 9th rib was cut and fractured. Diaphragm was cut splenic vessels were cut. The blood was full under the diaphragm left side of abdomen. Wound was oblique downwardly into abdomen.
(3) An abrasion 1" X 1/2" and contusion 2" x on the front of right shoulder outer clavicular region corresponding part of Kurta and Bunyan were cut and blood-stained against Injury No, 2 also."
10. ' Dr. Riaz Hussain Khan had examined Muhammad Yasin (P. W. 4) on the next day and found the following injury on his person-
(1) A contusion 2-1/2" x 3/4" on the upper part of posterior surface right chest 1-1/2' lateral to vertebral colum