GHULAM MUJADDID MIRZA, J.-Ghulam Hussain, Muhammad Sadiq, Muhammad Sarwar sons of Lal Khan, Muhammad Akram, Muhammad Nazir sons of Sardar Khan and Muhammad Rashid son of Allah Ditta, residents of village Nava Loke, were tried for the murder of Ghulam Rasul, by the Additional Sessions Judge, Gujrat. The trial Judge, by judgment dated 28th March, 1981, convicted them under section 302/148 read with 149, P. P. C. Muhammad Sarwar and Muhammad Nazir were sentenced to death and fine of Rs, 5,000 each and the remaining imprisonment for life, under section 302/149, P. P. C.
The convicts have appealed to this Court. Reference for confirmation of death sentence of Sarwar and Nazir is also before us. The appeal and the reference shall be decided by this judgment.
2. On 21st May, 1576 at 7-05 a. m., Ghulam Muhammad son of Sardar Khan lodged report (Exh. P. K.) with regard to the occurrence which took place at about sunrise within the area of Mauza Nava Loke about four miles from' Police Station, Saddar Gujrat. The report was recorded by S.-I. Syed Altaf Hussain.
The first informant's versions was that when at dawn he came out of his house for toilet, his brother Ghulam Rasul and sister Mst. Bibi were also on their way to their Dera. When they reached near the field of Kazam Ali Shah, from behind a Keekar tree lying there, Ghulam Hussain, Muhammad Sadiq, Muhammad Sarwar, Muhammad Rashid, Muhammad Akram and Muhammad Nazir appeared all of a sudden. They shouted and attacked Ghulam Rasul.
Ghulam Rasul had a Huqqa, a milk-pot and some feed for the buffaloes. He ran for some distance but was encircled by the accused party. Muhammad Nazir and Muhammad Sarwar had pistols.
Both fired. Ghulam Hussain, Muhammad Sadiq, Muhammad Rashid and Muhammad Akram attacked Ghulam Rasul with lathis. He was badly injured. He fell down but was still belaboured.
Mst. Bibi raised hue and cry. Ghulam Muhammad rushed to the spot. In the meantime, Allah Ditta also arrived. The accused after killing Ghulam Rasul took to their heels. Many other persons also turned up.
The motive for the murder of Ghulam Rasul was that Javed son of Fateh All was a depot-holder in the village. He had refused to give sugar to the complainant party. Aslam, nephew of Ghulam Muhammad asked for sugar but instead he got abuses. The parties ceased to be on speaking terms.
There was another motive and that was that a month and a half before the occurrence, Sarwar brought his cattle to the tube-well of Ghulam Muhammad for drinking water. Ghulam Rasool objected to that. This led to a quarrel. Muhammad Sarwar abused Ghulam Rasul who was slapped in return. Muhammad Sarwar and his party-men were offended by this.
3. The prosecution evidence in this case consists of ocular version given by Ghulam Muhammad, Allah Ditta and Mst. Bibi, the evidence of recovery and finally the post-mortem report of the deceased.
The appellants denied the allegations. Pleaded not guilty. They said that they had been roped in due to enmity. Ghulam Hussain, Muhammad Sadiq, Muhammad Sarwar and Muhammad Rashid admitted their relationship inter se, but denied that Akram and Nazir were their partisans.
Muhammad Sarwar led evidence in defence.
4. We shall first refer to the ocular evidence. Ghulum Muhammad's testimony on oath before the trial Court was identical to his statement before the police which has been referred to above. He accused Nazir for firing the first shot which hit Ghulam Rasul in the back of his shoulder below scapula. He was followed by Sarwar whose shot injured ribs of the deceased. Then all the accused rounded up the deceased. Muhammad Akram inflicted sofa blow on the head while Rashid gave sota blow on the legs. Then the accused armed with sotas gave beating to Ghulam Rasul.
Ghulam Muhammad also deposd about the two fold motive before the trial Court.
Allah Ditta stated that all the accused were known to him. His village was at a distance of five Killas from village Nava Loke where the occurrence took place. He left his Dera at about sunrise, came in the open and went to the fields for toilet. The path which led to the dera of Ghulam Rasul was at a distance of five Killas from his dera. He saw Ghulam Rasul coming towards his dera on that path, Ghulam Rasul was being followed by Mst. Bibi and Ghulam Muhammad. Ghulam Rasul was then carrying wanda in a chadar. He was holding a huqqa in one hand and garwa in the other. When he was away from a tree lying on the ground in the field of Khadim All Shah, the accused party emerged from behind that tree. Nazir and Sarwar had pistols and the others sticks. He saw Nazir opening the attack with pistol. He was followed by Sarwar. Rest of his statement is the same as given by the first informant.
Mst. Bibi, a housewife, left her house alongwith her brother Ghulam Rasul. They were on their way to dera. Ghulam Rasul had Wanda on his head in a chadar, huqqa in one hand and garwa in the other. When brother and sister reached the land of Abdul Ghani, the accused party appeared from behind a keekar tree lying in the land of Abdul Ghani. Nazir and Sarwar had pistols and the rest sticks. The accused shouted. They moved forward to attack Ghulam Rasul. The victim ran for his life to the western side of the fields of Kazim Ali. He threw articles which he was carrying. He was surrounded by the accused. Nazir fired. Ghulam Rasul was hit in the back below the right shoulder.
Then Sarwar fired. His shot hit Ghulam Rasul in the ribs. He was then attacked by those accused who had sticks. Out of them, Akram was the first to give a blow on the head of the deceased.
Rashid gave sota blow on the legs. He was followed by Ghulam Hussain and Muhammad Sadiq who gave blows at the back of the deceased. Then all of those who had sticks gave beating to Ghulam Rasul, as a result of which he died at the spot.
5. On 21st May, 1976, Dr. Nisar Ahmad, conducted the postpmortem examination of Ghulam Rasul.
He noticed 12 injuries in all. Two were fire-arm wounds 1/4" x 1/4" X chest cavity deep on the back right side of the chest in between 5th and 6th ribs" "and" 1/4 x 1/4 x chest cavity deep on the right side of the chest in between ribs Nos. 7th and 8th. Edges were inverted and blackened. Both these injuries were sufficient to cause death in the ordinary course of nature individually as well as collectively.
The rest of the injuries were contusions. They were simple in nature caused by blunt weapon.
6. Syed Altaf Hussain, the Investigating Officer recovered two pistols as well as sotas from the respective accused, but the evidence of recovery is not helpful to the prosecution because the pistols were not sent to the Forensic expert and the sotas were not even found to be stained with blood.
7. We now proceed to discuss the evidence of two defence witnesses produced by Sarwar appellant. One was Muhammad Hussain, Record-keeper of Mayo Hospital, Lahore. He deposed that Dr. Waqar Ahmad who was posted at the relevant time as Registrar, South Surgical Unit, Mayo Hospital, Lahore, had proceeded to Lybia. The witness was familiar with the handwriting of the doctor. He, therefore, proved Exh. D. A. The discharge slip of Muhammad Sarwar prepared by Dr. Waqar Ahmad. The discharge slip showed that Muhammad Sarwar aged 25 years was admitted in South Surgical Unit of Mayo Hospital, Lahore on 20th May, 1976, and was discharged on 23rd May, 1976. The witness further stated that the admissions of Muhammad Sarwar was further borne out by the relevant register brought by him.
The other witness is Bahadur Khan, Foot-constable. He was given the summon for service of Dr. Waqar Ahmad, but was told that the doctor had gone abroad and was not expected to come back to Pakistan in the near future.
8. Learned counsel appearing on behalf of the appellants contended that the medical evidence was in conflict with the ocular version. The presence of semi-digested food noticed by the doctor in the stomach of the B deceased showed that the occurrence took place at night and not as alleged by the prosecution at{{URDU TEXT}}. According to learned counsel, the time would be approximately 11 in the night. It was further contended that as a matter of fact the witnesses did not see the occurrence because they have failed to give a satisfactory explanation of their presence at the spot.
Last of all, learned counsel submitted that enmity between the parties was duly established and that there being no reliable evidence, conviction as such was not legally maintainable.
9. Before proceeding further, we would like to observe that the arguments in this case concluded on 25th April, 1983, and we had verbally announced the order in open Court dismissing the appeal of the condemned prisoners, and altering the conviction of the other appellants under secption 323, P. P. C. And reducing their sentence to the period already undergone. The verbal order, however, was not followed either by a short order in writing nor by a proper judgment by the Bench.
Later on at the time of writing of the judgment, one of us (Ghulam Mujaddid Mirza, J) felt the necessity of re-hearing of the case on certain points which required further elucidation qua the condemned prisoners. The case was accordingly ordered to be relisted.
When the case came up for rehearing, we asked both the sides if there was any objection to the same because the order had been verbally announced. Nobody objected to that. On the other hand, learned counsel for the appellants showed us Rukan Din and others v. Hafiz-ud-Din and another in which it was held that a judgment orally pronounced could be subsequently altered after re-hearing.1 We would like to add a note of caution that a rehearing is not to be A done as a routine. It is only permissible in exceptional circumstances and only in the interest of justice and that too provided neither a short order nor the judgment has been signed by the Bench seized of the matter.
10. Now we proceed to deal with the contentions raised by Raja Muhammad Anwar, Advocate, for the appellants. We do not think that there is any conflict between the medical evidence and the ocular account of witnesses. The mere fact that the doctor in his examination-in-chief has stated that the stomach contained semi-digested food would not ipso facto C mean that the time of the occurrence given by the first informant was not correct. It is mere opinion of the doctor. It does nos lead us to disbelieve the eye-witnesses who have deposed on oath. Similarly, we do not agree that the witnesses were not present at the spot. Their evidence inspires confidence and the same cannot be ruled out.
11. Learned counsel for the appellants did not press into service the defence produced by Sarwar appellant. Even otherwise we consider the same to be of no help to the defence because the defence witness Muhammad Hussain did not make a specific statement that Sarwar appellant remained in the hospital all hours of the day during his admission. Gujrat is not far-off from Lahore and admission in the hospital is not presumption that Sarwar appellant remained in the hospital all hours of the day on 21st May, 1975.
12. Now comes the question of sentence. We do not find any justification for convicting those appellants who were armed with sotas, under section 302/149, P. P. C. All the injuries noticed by the doctor in the postmortem report by blunt weapons were contusions and were simple in nature. In the circumstances of the case, we hold that the appellants were individually liable. We accordingly set aside the convictions and the sentences recorded by the trial Court under sections 149 and 302/149, P. P. C. Against Ghulam Hussain, Muhammad Sadiq, Muhammad Akram and Muhammad Rashid, and hold them guilty only under section 323, P. P. C. They are sentenced thereunder to the period already undergone. They shall be set at liberty, if not required in any other case.
With regard to the two appellants namely Muhammad Nazir and Sarwar, who were armed with pistols, we note that each of them was attributed by all the eye-witnesses to have fired one shot each and according to the doctor, both the injuries were individually and collectively sufficient to cause the death in ordinary course of nature. Nevertheless, we are not inclined to confirm their death sentences. The reason is that the prosecution has failed to prove motive. According to the first information report, the complainant's nephew Muhammad Aslam was refused the quota of sugar by Javed son of Fateh Ali, depot-holder. Nevertheless, Aslam was not produced. The other motive regarding the bringing of cattle for drinking water is also not very significant. As a matter of fact, the motiveL either taken collectively or individually sounds very shallow. In ther absence of any direct evidence, the motive becomes very doubtful. Since the immediate cause of the commission of the offence is also not proved by the prosecution, we do not think that extreme penalty of law should be exacted from appellants Muhammad Sarwar and Muhammad Nazir. In this view, we are fortified by Muhammad Sharif v. The State .
For the foregoing reasons, we maintain the convictions qua appellants Muhammad Sarwar and Muhammad Nazir under section 302, P. P. C. But convert their sentence of death to imprisonment for life. The sentence of fine of Rs, 5,000 (rupees five thousand only) each is maintained which is directed to be paid in full to the heirs of the deceased as compensation. The Collector concerned shall take necessary steps in this behalf. The conviction and the sentence recorded under section 148, P. P. C. Is hereby set aside. They shall be given benefit under section 382-B, Cr. P. C.
13. With the above modification, the Appeal and the Reference stand disposed of. 2