1. ' MUHAMMAD HALEEM, C, J.-This appeal, by special leave, arises from the judgment of the Lahore High Court, dated 3rd of April, 1978, by which Criminal Appeal No, 305 of 1976, was dismissed and Murder Reference No, 149 of 1976 accepted.
2. ' It appears that about two months before the present incident appellant Yousuf cut a joke with Mst.
3. Seema the sister of complainant Bashir Ahmad upon which he protested in strong terms. At about noon on 8th of August, 1974, while the complainant was returning with a bundle of grass from his field, Yousaf accosted him and they exchanged abuses and Yousaf threatened to see him. The same day at Peshivela while he was sitting in the courtryard. Of the house of Niaz Ali under a Keekar tree alongwith Abdul, Asghar, Mst. Fazal Bibi and Nazar Hussain in Chak No, 10 Shumali, District Sargodha, they saw Yousaf, Nazir, Basbir, Arshad and Khadim Hussain on the roof of their house having ascended from the back-side and giving lalkaras that they would not spare them. Nazir was armed with a Sota while the others had brickbats. Seeing the assailants about to strike, Niaz Ali got up and wanted to enter the room, but he was hit by ,brickbat thrown by Yousaf which felled him down. Nazir jumped from the roof into the courtyard and gave a Sota blow to Niaz Ali; and as Bashir Ahinad attempted to intervene he was also given a stick blow by Nazir. Yousaf threw a brickbat which also hit him. In order to save himself Bashir Ahmad picked up a knife which was lying nearby and caused a blow with it to Nazir, which struck him on his cheek ; and while all this was happening those who were on the roof were shouting lalkaras, throwing brick-bats and damaging the roof by excavating its mud. Thereafter they disappeared from there on the entreaties of the complainant and the other inmates of the house. Niaz Ali had injuries on his neck and head and he was made to rest on a cot. Yousaf and others thereafter pleaded with the complainant not to lodge the report and to compromise the dispute, but as Niaz Ali's condition worsened, the complainant Bashir Ahmad proceeded to lodge the report at Police Station Bhalwal on 11th of August, 1974, but on the way near the Girls High School, he met Muhammad Hayat, A. S. I. Of that Police Station to whom he gave his statement, which was recorded at 10-00 p.m. Niaz Ali died the same night.
4. ' From the spot 12 pieces of bricks, which were scattered in the courtyard of the house, were picked up. A Chhuri allegedly used by Bashir Ahmad was produced, which was seized. Bashir Ahmad was sent for medical examination and two injuries were noticed on his person which were said to have been caused by a blunt-weapon.
5. ' The appellants, Bashir Ahmad, Muhammad Arshad and Khadim Hussain were arrested on 11th of August, 1974 and out of them only Nazir Ahmad had an incised injury. Appellants, Bashir Ahmad and Muhammad Arshad were brothers inter se while Khadim Hussain was their cousin.
6. ' The deceased suffered as many as six injuries with a blunt-weapon ; and out of them the three on the head, which caused the fracture of skull bone, were sufficient to cause death in the ordinary course of nature.
7. ' The prosecution examined Bashir Ahmad (P. W. 6), Asghar Ali (P. W. 7), Abdul (P. W. 8) and Nazar Hussain (P. W. 9). The first three are the sons of the deceased and the fourth is his son-in-law, who is married to Mst. Sakina daughter of the deceased, and resided about for Killas away from the house of the deceased. The appellants and those acquitted resided in the neighbourhood of the complainant party.
8. ' The trial Court rejected the defence submission that the F. I. R. Was lodged after a long interval of time on the basis that there was a talk of compromise as both the parties belong to the same "Bratheri", and it was, therefore, that the same was not lodged promptly. In regard to Bashir Ahmad, Muhammad Arshad and Khadim Hussain, the trial Court held that they were falsely implicated which was obvious from the fact that although they were said to have thrown brickbats for a long time, but it was ineffective, which clearly reflected adversely on the veracity of the version. In regard to Nazir, the trial Court held that as the prosecution witnesses had unanimously attributed to him the role of inflicting a Sota blow on the head of Niaz Ali, and causing another Sota blow to Bashir Ahmad, who in turn injured him with a knife, it undoubtedly established his role of jumping into the courtyard from the roof and causing such injuries and receiving one in return. While assessing the role of Yousaf, the trial Court, in the background of the motive imputed, accepted the testimony of Bashir Ahmad and Asghar Ali that he had thrown a brickbat which struck the deceased at his neck, which caused him to fall although Abdul (P. W. 8) and Nazar Hussain (P. W. 9) have not so pin-pointed Yousaf and all that was stated by them was that the deceased was struck by a brickbat causing him to fall. In its ultimate analysis, the trial Court held Nazir Ahmad and Muhammad Yousaf to be the assailants of the deceased. In this connection, it would be necessary to refer to its observations : "On the basis of my discussion, made above, I am fully convinced that Nazir Ahmad and Muhammad Yousaf accused injured Niaz All deceased with the intention to murder him. This is a case, in which the accused caused both insult and harm to the victim party. On the one hand, they outraged the modesty of unmarried daughter of the deceased and on the other they caused bodily harm to father and son, due to which Niaz Ali lost his life.
9. ' As the role of Nazir Ahmad accused is more active, inasmuch as he jumped down in the courtyard and inflicted a dang blow on the head of the deceased, I do. Not think he is entitled to any leniency.
10. ' As far as Muhammad Yousaf accused is concerned, though there is a strong motive against him, yet simple existence of motive is not sufficient alone to award capital punishment. It has got to be seen as to how much part was played by him in the commission of the crime. In the present case he only threw a brickbat, which hit the deceased on his neck, but there is no evidence that he jump down into the courtyard. I, therefore, take a lenient view in his case."
11. ' Accordingly, both of them were convicted under section 302, P. P. C. Read with section 34, P. P. C.
12. And in the matter of sentence Muhammad Yousaf was awarded life imprisonment while Nazir Ahmad was sentenced to death. Both of them were also awarded a fine of Rs, 1,000 each or in default to undergo R. I. For one year. Nazir Ahmad was further convicted under section 323, P. P. C.
13. For causing injuries to Bashir Ahmad and sentenced to undergo R. I. For six months. The other three were, however, acquitted.
14. ' On appeal and reference, the High Court upheld the conviction and sentence of the appellants.
15. Leave to appeal was granted to reappraise the evidence in the interest of justice.
16. ' Upon or appraisal of the evidence, we find that the ocular version as to the brickbats thrown by Yousaf having hit the deceased at his neck was not established by the medical evidence. The other three injuries which were not fatal were located on the forehead, left knee and right knee and only one on the forehead appeared to have been caused by a contact with 'a brickbat as according to its diamensions. The other two appeared to have been caused by a blunt-weapon. Now as to Who caused the other two fatal injuries on the head and both the knees with a blunt-weapon is not discernible from the evidence. Only one injury is attributed to Nazir Ahmad on the head alleged to have been caused by a Soteblow. On Bashir Ahmad only one injury is attributed to him as having been caused by a Sota and as for the second injury it was stated that it was the result of the brickbat thrown by Muhammad Yousaf. The dimensions of this injury are not such as could have been caused by a contact with brickbat, and, therefore, this part attributed to Muhammad Yousaf appears to be doubtful. As for Nazir Ahmad, there is consistent evidence of all the witnesses whom we have no reason to disbelieve that he had jumped into the courtyard from the roof and caused a blow with a Sota to the deceased. This is corroborated not only by the fact that he himself suffered an injury with knife, but also that he caused a stick blow on the arm of Bashir Ahmad (P. W).
17. ' The moot question, which arises for consideration, is as to what offence Nazir Ahmad had committed. All the three injuries collectively have caused fracture of the skull bones. Except for one injury attributed to Nazir Ahmad, it is not known as to who caused the other two. The two other injuries on the deceased are also not consistent with the striking of the brickbats. Similarly one injury on Bashir Ahmad also does not fit in with the striking of a brickbat. In this background, we find that 22 brickbats were collected, but if at all it would have been a preconcerted attack to kill the deceased or Bashir Ahmad, there would have been a possibility of larger number of injuries on the deceased and Bashir Ahmad (P. W.) and other inmates of the house. But this is not so. All that can be said is that the intention cannot be more than to cause grievous injury to avenge the insult of an accusation. Therefore, as the single blow caused by Nazir Ahmad had only contributed cumulatively to the fracture of skull bone, but without any apparent extent to which it had contributed, the intention could not be higher than to have caused the blow "with a knowledge that it was likely to cause death". In this context it is not possible to infer intention to kill or to cause such bodily injury as was likely to cause death.
18. ' In the circumstances, we would alter the conviction of Nazir Ahmad from murder to one under section 304, Part H, P. P. C. And substitute a sentence of 10 years' R. I. And also enhance the fine to Rs, 5,000 or in default to suffer R. I. For three years. One-half of the fine, if realised, shall be paid to the heirs of the deceased. His sentence under section 323, P. P. C. Is maintained and the substantive sentences are ordered to run concurrently.
19. As for Muhammad Yousaf, his case stands on the same footing as the acquitted accused, as the prosecution has failed to establish his role in the transaction. Accordingly, we would give to him the benefit of doubt and acquit him. His appeal is allowed. The appeal of Nazir Ahmad, subject to the above modifications, is dismissed.