' ASLAM RIAZ HUSSAIN, J.-- This judgment will dispose of two appeals, namely, Criminal Appeal No, 144/79 filed by Din Muhammad, Nazeer alias Jeera and Muhammad Umar, and Criminal Appeal No, 145/79 filed by their co-accused Bashir, against the dismissal of their appeals in a murder case by the Lahore High Court, vide its judgment dated 26th September, 1979.
2. The facts giving rise to the appeals are, briefly, that Din Muhammad, Muhammad Bashir, Nazir alias Jeera and Muhammad Umar appellants were accused of the murder of Inayat and causing grievous injuries to Nawab Din, P.W.10, and Ahmad Din P.W.11 with dangerous weapons during the incident which took place on 9th April, 1975 at Shamela in Village Kotli Rai Abu Bakar, District Kasur.
' The F.I.R. In this case was lodged by Muhammad Sharif P.W.9 (brother of the deceased) at 6.40 a.m. On 5th April, 1975 and was recorded by Muhammad Saeed Khan, A.S.I. (P.W.13).
3. The prosecution case according to the F.I.R., is briefly, that about 9 years earlier Nawab P.W.10 sold his land to Fateh Din father of Inavat deceased. The for appellants, who are sons of Noor Muhammad real brother of Nawab Din P.W.10, deeply resented the sale. Fateh Din (vendee) was willing to restore the land if he was paid the price but the appellants threatened to teach their uncle, Nawab Din, as well as Fateh Din (vendee) a lesson for the abovementioned transaction. It is also alleged that a day earlier there was a quarrel between the appellants and the complainant party on the question of turn of water. The version of the incident is that on the day of occurrence Inayat (deceased) and Nawab Din were returning to the village on mares while Ahmad Din P.W.11 was following them on foot. When they passed in front of the house of the accused/appellants, all for of them, namely, Bashir (armed with a sword), Din Muhammad (armed with a Takwa), Nazir (armed with a Takwa) and Umar appellant (armed with a knife), attacked them. Umar caught hold of the mare. Inayat and Nawab P.W. 10 jumped down and tried to run away in order to save their lives but Bashir appellant gave a blow with his sword to Inayat (deceased) hitting him on his head.
Inayat fell down. As he lay fallen, Din Muhammad and Nazir appellants gave him Takwa blows, which hit him on the right hand. Din Muhammad, Bashir and Nazir appellants inflicted injuries on Nawab Din P.W.10, after he had fallen down. Ahmad Din P.W. Tried to rescue him but he too was attacked by Din Muhammad and Nazir appellants with Takwas. Muhammad Umar tried to take out the left eye of Nawab Din P.W. With a knife, but on seeing some persons, namely Sharif P.W.9, Muhammad Ishaque P.W.10 and Saif (not produced), who were attracted to the spot by the noise and saw the occurrence, all the accused ran away alongwith their respective weapons. The injured persons namely, Inavat and Nawab Din P.W. Were taken to the hospital at Kasur. Inayat expired before reaching the hospital. Muhammad P.W.13 (the S.I.) went to the hospital and prepared the inquest report and the injuries statement of the deceased and deputed a constable to get the post-mortem of the deceased conducted. The condition of Nawab Din was serious, therefore, he was brought to a Magistrate for getting his statement recorded so that it could be used as his dying declaration in case of his death. The S.I. Then visited the spot and took into possession some blood-stained earth from the street, where the occurrence had taken place. He arrested the accused on 6th April, 1975 and got the weapons of offence recovered from them. He recovered the sword (P.6) from Bashir appellant, Takwas (P. 7) from Din Muhammad appellant, knife (P.8) from Muhammad Umar appellant, and Takwa (P.9) from Nazir appellant. All these weapons were found to be stained with blood. On examination by the Forensic Expert all these weapons were found to be stained with human blood.
4. At the trial the prosecution relied on the testimony of 3 eye-witnesses, namely, Muhammad Sharif, P.W.9, Nawab Din, P.W. 10 and Ahmad Din P.W.11. Of these, the last mentioned two witnesses were injured Nawab Din P.W.10 having received 28 injuries and Ahmad Din P.W.11 having received 4 injuries). The prosecution also relied on the evidence of motive, the medical evidence and the recoveries and blood-stained weapons found from the appellants. These recoveries were denied by the appellants. They, however, admitted the occurrence, but gave a different version thereof.
Bashir appellant put in the following statement when examined under section 342, Cr.P.0 :- "At about mid-night (4-4-1975) we were attacked by the complainant party headed by Nawab and Inayat (deceased). Ahmad Din and Umar P.Ws. Were also there. Inayat had a rifle which he fired on entering or gate which hit all of us, except myself. Din Muhammad, was hit on the head. They wanted to kill us. Nawab and Inavat (deceased) were prompting the attack. We feared instantaneous death and so resisted with whatever implements we could lay hands upon. Only by disabling and disarming lnayat, Nawab and driving away Ahmad Din etc. We were able to save ourselves, especially myself. Lnayat's rifle, after hitting him was snatched by us. But before we could remove Nawab's pistol away, it was snatched by us. But before we could remove Nawab's pistol away, it was snatched away by Umar P.W. Nawab fell on chopped firewood lying in or house. Inayat also died in or house where he had fallen."
' Bashir stated further that they (i,e, the accused) had merely defended themselves against the mortal threat when attacked by the complainant party. In other words they pleaded self-defence.
The motive alleged by the prosecution was denied. The participation of their uncle Nawab Din was explained by him saying that he was their Shareek and wanted them to oust them from the village.
The recoveries of the incriminating weapons were also denied.
5. The trial Court accepted the prosecution evidence, convicted the appellants and sentenced them as follows:- ' Din Muhammad--
(1) Under section 302/34, P.P.C. Imprisonment for life and a fine of Rs, 4,000 or in default 6 months'
R.I.
(2) Under section 326/34, P.P.C. 10 years' R.I. And a fine of Rs, 1,000 or in default 6 months' R.I.
(3) Under section 324/34, P.P.C. 3 years' R.I. Bashir--
(1) Under section 302/34, P.P.C. Sentenced to death and a fine of Rs, 4,000 or in default 6 months' further R.I.
(2) Under section 326/34, P.P.C. 10 years R. I. And a fine of Rs, 4,000 or in default 6 months' further R.I.
(3) Under section 324/34, P.P.C. 3 years' R.I. Nazir alias Jeera-- ' Under section 302/34, P.P.C. Imprisonment for life and a fine of Rs,4,000 or in default 6 months' further R.I.
Under section 326/34, P.P.C. 10 years' R. I. And a fine of Rs, 4,000 or in default 6 months' R.I.
' Under section 324/34, P.P.C. 3 years' R.I. Muhammad Umar-- ' Under section 302/34, P.P.C. Imprisonment for life a fine of Rs,4,000 or in default 6 months' further R.I.
' Under section 326/34, P.P.C. 10 years R.I. And a fine of Rs,4,000 or in default 6 months further R.I.
' Under section 324/34, P.P.C. 3 years' R. I. And a fine of Rs, 4,000 or in default 6 months' R.I.
(All the sentences were ordered to run consecutively).
6. They filed an appeal before the High Court which was dismissed and the sentence of death awarded to Bashir appellant was confirmed. They then applied for leave to appeal before this Court which was granted to them on 12-7-1979, inter alia, to consider the evidence on A the record in the light of the facts that the injuries were suffered by the accused during the incident which were not explained by the prosecution and that the eye-witnesses were closely related to the deceased. It was also felt that the motive alleged by the prosecution did not inspire confidence.
7. We have heard the learned counsel for the appellants as well as the learned State counsel at some length and have also gone through the entire evidence on the record, and the judgments of the two Courts below.
8. The learned counsel for the appellants strenuously argued that the presence of the injuries on the person of Nazir and Muhammad Umar appellants, which had not been mentioned by the prosecution witnesses, corroborated the defence version put forward by the accused-appellants.
' We have carefully considered this contention. On going through the testimony of the doctor who conducted the post-mortem examination of the deceased and examined the injured witnesses, we notice that the doctor found as many as 28 injuries on the person of Nawab Din P.W.10 (real uncle of the deceased). Most of these injuries are incised wounds caused with sharp-edged weapon.
Some of them are on the vital parts of the body like head and were found to be grievous. It is a miracle that Nawab Din P.W. Survived the attack. Inayat (deceased) had for injuries on his person out of which 3 were incised or with sharp-edged weapon, injury No,1 being an incised wound measuring 41" x 11" on the back of head crossing mid-line 2" above occiput, travesely placed. Bone underneath both parietals were cut through and through. Ahmad Din P.W. 11 had also received 4 injuries, three of which were incised wounds.
' As against this the 3 accused namely Din Muhammad, Nazir and Muhammad Umar, received 9 injuries with blunt weapons, all of which were simple in nature. Had the deceased and his companions come at the dead of night, armed with rifle and pistol etc., with the avowed intention of killing the appellants, they would certainly have riddled them with bullets and killed them at the spot instead of having themselves suffered numerous injuries with sharp-edged weapons at the hands of the accused party, who merely suffered some simple blunt-weapon injuries. The defence version is also falsified by the fact that the Investigating Officer had found and picked-up the blood-stained earth from the street from a place outside the house of the appellants and not from inside the house as alleged by the defence.
9. As for the eye-witnesses, no doubt Muhammad Sharif P.W.9 is brother of the deceased, but Nawab Din P.W.13 and Ahmad P.W.11 are close relatives of the appellants. Nawab Din P.W.10 is the real maternal-uncle of the accused and Ahmad Din P.W.11 is a nephew of Nawab Din P.W. Their testimony is fully supported the injuries found on the person of Nawab Din P.W. As also by the recovery of the crime weapons from the accused/appellant which were found to be stained with human blood.
10. For the persons given above we do not consider the defence version to be true. Their guilt has been fully proved, we therefore feel that the learned trial Court was justified in convicting the appellants and the High Court was justified in maintaining the conviction as well as sentences of the appellant.
' However, in view of the fact that the motive alleged by the complainant party regarding sale of land by Nawab Din P.W. To Fateh Din, 9 years ago, does not seem to be very convincing, we feel that the prosecution has withheld the immediate cause of the incident which if disclosed might have constituted a mitigating circumstance. We are, therefore, of the view that the sentence of death awarded to Bashir appellant merits to be reduced from death to that of imprisonment for life, though he deserves to be burdened with higher sentence of fine under section 302, P.P.C. We, therefore, reduce his sentence of death to that of imprisonment for life and after hearing his counsel on this aspect, enhance the sentence of fine from Rs, 4,000 to Rs,10,000. The remaining sentences of imprisonment which have been ordered to run consecutively and the sentences of fine, are however maintained.
' With the above modifications in the sentences, the appeal is dismissed.