' MUHAMMAD AFZAL ZULLAH, J.--Mokha aged 70, Mughla, aged 50, Ramzan aged 25, and Mumraiz aged 24 were tried by the learned Additional Sessions Judge, Lyallpur for the murder of their co- villager, Neka aged 55. Vide judgment, dated 16-9-1968 they all were acquitted in the murder charge. Mokha, Ramzan and Mumraiz were convicted under section 325/34, P.P.C. and were awarded sentence of one year R.I. each while Mughla was convicted under section 304, Part II and was awarded the sentence of 4 years R.I. They, except Mumraiz, filed Appeal No, 819 of 1968. The state also filed an appeal under section 417, Cr.P.C. being Criminal Appeal No, 221 of 1969. Both these appeals are being disposed of together.
2. The occurrence took place on 3-5-1967 at 8 a.m. near the Mohga of a water-course when the deceased was irrigating his lands. Mamoora (P.W.12) a nephew of the deceased, lodged the First Information Report at 10 a.m. on 4-5-1967. Formal F.1.R. was registered at Police Station Mamun Kanjan 2 miles away at 10-15 a.m. on 4-5-1967. During the investigation Lathis P.4, P.6 and P.7 were recovered from Mughlam Ramzan and Mumraiz but they were not blood-stained nor have they been otherwise connected with the occurrence. Mamoora, who is also an eye-witness gave the main account of the case from the side of the prosecution. He deposed that Neka deceased was irrigating Killa No, 14 of his land while he was helping him. At about 8 a.m. on the day of occurrence, Neka on account of diminished supply of water in the water-course, went towards the Mohga, he was attached by the four appellants, who had emerged from a Tibba. They were armed with Dangs. Mokha challenged the deceased saying that he would be killed. Thereafter, Mughla gave a Dang blow which hit the deceased on his foot. The blow of Mumraiz struck him on the right hand.
Mughla gave the second blow which struck the deceased on his forehead, whereupon he fell down; after which Mughla, Ramzan and Mumraiz gave further blows "on his body while Mokha accused stood encouraging his companions to kill the deceased." On the alarm raised by the witness and Neka, Allah Ditta and Waryam P.Ws. as also Jalla (not mentioned as an eye-witness in examination-in-chief but so mentioned in cross- examination) saw the occurrence and intervened to save Neka. The injured became unconscious. Other persons also reached the spot. He was taken to a nearby Civil Dispensary. Jalla, Allah Ditta and Waryam did not go to the dispensary.
3. The motive for the attack was an earlier occurrence and a pending hurt case in which Ratloon and Allah Yar, brothers of the deceased, Noor, his son and Kamir were being prosecuted at the instance of Mokha and Mughla accused for an offence under section 324/34, P.P.C. The F.I.R. of the said case, dated 3-3-1967 was produced by the prosecution in evidence as Exh.P.Q. It was lodged by Mughla. Noor son of Neka, as is mentioned in the said F.I.R. was accused of having caused Kulhari blows on the forehead and hand of Mughla. Other were stated to have given him Dang blows. Mokha accused was also alleged to have been injured by Noor with his Kulhari and others with thier Dangs. This occurrence took place prior to the present occurrence. It is suggested from the prosecution side that the accused murdered Neka while evenging the occurrence in which Mughla and Mokha appellants, real brothers inter se, were the victims. Ramzan appellant is son of Mokha while Mumraiz is his brother-in-law.
4. Allah Ditta, P.W. 13, Waryam P.W. 14 and Jalla P.W. 15 fully supported the prosecution case, Waryam and Allah Ditta had collected at the Dhari of Jalla P.W. which is at a square's distance from the place of occurrence for the purpose of taking a Jirga, in order to facilitate reconciliation between Sultan, brother of Waryam and his wife, Mst. Sattan. They were to go to a village, which according to the site plan, is near the place of occurrence. On their way to that village, they witnessed the occurrence and tried to save Neka from the assailants. It is significant to note that these witnesses did not 'specify' the role attributed to each one of the accused by Mamoora except to the extent of what Mokha gave as Lalkara.
5. Considerable arguments were addressed at the bar with regard to the medical evidence. It is, therefore, necessary to mention the same in some detail. It has already been mentioned that the injured was taken to a dispensary in the first instance for treatment. Dr. Abdul Rauf examined Neka when he was still alive at 1-45 p.m. On 3-5-1967. The doctor made the following observations about the injuries and the condition of the patient:--
(1) A contused wound 2" x 24" x bone deep on the forehead the frontal bone is fractured dipped fracture. The' wound is situated obliquely in the center of forehead.
(2) Contused swelling (blue in colour) 11" x 24" around the left eye.
(3) Contused swelling (blue in colour) 14" x 24" around the right eye.
(4) Contusion mark with swelling le x 1" on the right side of forehead.
(5) Fracture of first phalanx of fore-finger of left hand with marked swelling.
(6) Contusion mark 6" x 2" on the lateral side of right thigh 24" below the anterior superior iliac spine.
(7) Contused wound 4" x 1" x 4" on the dorsal side of right foot 24" from the both malleolus.
(8) An abrasion 1/3" x 4" on the dorsal side of left foot.
(9) Swelling area 4" x 3" on the dorsal side of left foot around the ankle joint.
(10) The patient was unconscious when brought to me and blood is oozing from his nose and vomited blood which is coming from his base of skull, in my opinion, which may have got fractured.
' The pulse rate is 120 per minute. Respiratory rate 24 per minute. Blood pressure 50/90.
Temperature 98/F. Nature of injuries:-- "Injury Nos. 1 and 5 are grievous and rest are simple, for injury No, 10 he will remain under observation and advised X-ray. All injuries are caused with blunt heavy weapon. All the injuries are within 12 houRs,"
' The injured expired on the night between 3/4-5-1967. On the next morning Mamoora lodged the report and after necessary proceedings in the nature of inquest; the autopsy was performed on the 3rd day of occurrence i.e, on 5-5-1967 at 3-30 p.m. by Dr. Muhammad Yasin. He found clotted blood in both the ears of the deceased and observed the following injuries with resultant damage:- - "(1) A contused wound 2" x 4" x bone deep over the middle of forehead just above the bridge of nose with fracture of bone underneath.
(2) Blackening of both the eyes.
(3) Swelling 1" x 14" over the left index finger with fracture of bone underneath.
(4) A contused wound i" x I" x muscle deep over the front of bone underneath.
(5) Swelling of the middle of right leg with fracture of bone under neat.
(6) Swelling 3" x 2" over the top of the head. On dissection of the scalp there was fracture of the frontal bone and also linear fracture of the two parietal and temporal bone extending from one ear to the other. There was accumulation of blood over the bones and over the membranes which are torn at the site of the injury No, 1, there was also hemorrhage into the substance of the brain at the site of injuries Nos. 1 and 7."
' In the opinion of the Doctor the death occurred due to intra cranial hemorrhage and shock due to injury No, 1 which was added by injury No, 7' 'They were found sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was about 2 days.
6. The accused when examined under section 342, Cr.P.C. pleaded complete denial except for the registration of the earlier case in which Mughla and Mokha were allegedly injured. They also pleaded that they had been involved due to enmity of the witnesses. Although Allah Ditta had denied any relationship with the deceased. Mokha asserted that wife of a brother of Allah Ditta is real sister of Neka deceased. The accused also pleaded that the occurrence had taken place during the night and that their involvement was due to suspicion. The learned trial Judge repelled the criticism relating to the delay in the F.I.R., the discrepancies and improvements in the depositions of the eye witnesses and held that the prosecution witnesses had correctly identified and named the assailants of the deceased. He, however, was of the view that the intention and purpose of the accused was only to avenge the earlier beating given by the relations of the deceased to Mokha and Mughla. There was no intention to kill. Mughla appellant, however, the learned Judge thought, "exceeded the common intention at the spur of moment to give a head injury to the deceased which he could easily know it was likely to prove to be fatal to the deceased." On these findings he accordingly convicted and sentenced the accused as noted in the opening part of this judgment.
7. Learned counsel for the accused contended that the F.I.R. was delayed in order to falsely implicate the accused; that the occurrence is of night; that the eye-witnesses are interested and inimical to the accused and they are chance witnesses; that the medical evidence does not support the prosecution, that the eye-witnesses made several improvements and their depositions are discrepant inter se; and that there being serious conflict on the question of Lalkara given by Mokha, his participation in any case is doubtful. Learned counsel for the State, on the other hand supported the judgment of the learned trial Judge and also explained the discrepancies and improvements. The delay in the F.I.R. as also the seeming conflict between the ocular account and the medical evidence, according to him, has also been explained. On the other hand, according to him, the medical evidence corroborates the eye-witnesses. He also tried to argue that the wire around the end of the sot recovered from Mughla shows that it being a heavy weapon, the same must have been used by Mughla when causing the main injury on the forehead of the deceased.
He strenuously argued that the weapons used, injuries caused and the location thereof show that all the accused had common intention to kill the deceased. In this behalf, he also relied on motive.
8. It is true that on face the F.I.R. was delayed by about 26 hours but as explained therein, the injured was first removed to the hospital. The relevant medical report shows that although it was drawn up at 1-45 p.m. the injured had reached the hospital at 10' clock. The occurrence took place at about 3 a.m. After making allowance for removing so badly injured person to the hospital, there does not appear to be a serious delay in this behalf. This circumstance on the other hand in a way controverts the defence suggestion that the occurrence was of night. Had it been so, the injured would have been removed to the hospital much earlier, may be in the morning. It is in evidence that the injured was medically examined and a medico-legal report was prepared which Mamoora, the first informant, took along for production before the police officer. The condition of the injured, as described in the Medico-legal Report undoubtedly was serious. To say that when Mamoora explained that he had been attending to the deceased, therefore, the F.I.R. got delayed, would in view of the condition of the injured then, not be unreasonable. There is nothing in the entire evidence nor any contention has been raised in this behalf that the police having earlier been informed about the occurrence came to the spot and prepared the report after consultation nor it can be said that this case was motiveless and that it would have been difficult for any one to name the culprits. Agreeing with the learned trial Judge, we are of the view that the delay in F.I.R. has not only been explained but is in the circumstances of the case of no help to the defence.
9. Regarding medical evidence, learned counsel tried to argue that two of the injuries on the person of the deceased when examined by Dr. Abdul Rauf were found to be of blue colour and because the doctor admitted that a wound turns bluish after about 10 or 15 hours, therefore, keeping in view the time when the doctor examined the patient, the occurrence would have taken place earlier to 3 a.m. in the morning. The argument is without any force. The doctor also opined that if the wound is deep and grievous, in such a case it changes colour after a considerable time because of hemorrhage. The 2 injuries which were blue in colour were swellings around both the eyes; which the doctor performing the post-mortem examination, admitted were in the nature of "blackening" of the eyes. The doctor who described the color as blue saw in reality "blackening" which must have been caused by injury No,1 inflicted on the middle of the fore-head. That being so it cannot be said that this colouring into blue and black was on account of long passage of time.
This supposition gets strengthened from the fact that while describing the other injuries on the body of the patient Dr. Abdul Rauf did not mention the colour of any one of them as blue. It is also pertinent to note that at the time the injured was brought to the doctor he was still bleeding from nose and mouth and while describing injury No, 10 he mentioned "oozing" of the blood. All this shows that the injuries were not that old as suggested by the learned counsel.
10. Learned counsel also tread to argue that the turn of water for irrigation claimed to have been utilized by Mamoora P.W. for his own land ended at 6-00 a.m. This, according to him is sufficient to show that the occurrence took place during the night and in any case before 6-00 a.m. This argument does not take account of what Mamoora explained in his examination-in-chief as also when under cross-examination. According to him, his turn began at 1-00 a.m. and ended at 6-00 a.m. on the day of occurrence and at the end of his turn "Neka deceased took his turn of his water".
The witness remained with his uncle Neka to help him because his own son was not with him. They, the witness further explained, first irrigated halt.of Killa No, 15 and then "began to water Killa No, 14."
The Patwari was thoroughly cross-examined. No effort was made to disprove the above claim of Mamoora. He stated that Killa No, 14 belonged to the deceased as a result of a partition. There is nothing on the record nor even in the statement of the Investigating Officer to show that these fields were not in the process of being irrigated. On the other hand, point No, 8 on the site plan, which is Killa No, 14, clearly shows the land as containing Barsaim and it was being irrigated.
Learned counsel also contended that Mamoora tried to improve his statement at the trial with regard to irrigation of land from his statement in the F.I.R. Although 3 lines statement in the F.I.R. in Urdu in this behalf has been expanded to more than double the space given to this aspect in the deposition at the trial, we have not found any contradiction. The details which were not necessary in the F.I.R. were supplied by Mamoora clearly on the questioning of the Public Prosecutor in examination-in-chief and on the questioning of the defence counsel in cross-examination, wherein the witness was also confronted with his statements made in the F.I.R. and before the Committing Magistrate. Obviously the Public Prosecutor at the trial thought it fit to give the background of the presence of Neka and Mamoora at and around the place of occurrence in detail. And because the details fit in with the information included in the F.I.R. and are not contradicted by any circumstances, there is no reason not to accept them. Keeping in view all the above circumstances we do not agree with the learned counsel that the occurrence took place during the night before the end of Mamoora's turn of water.
11. The main attack of the learned counsel of the ocular account is based on two main (so-called) factors: that all the eye-witnesses are related to the deceased and were also present at the place of occurrence on account of chance, therefore, they should not be believed without independent corroboration. We do not agree with him. Mamoora no doubt is nephew of the deceased and is thus related but as would be presently explained, there does not appear to be any reason to suppose that he had a motive to falsely implicate the accused. It is necesary at this stage to further explain the question of relationship between the witness inter se and between the parties.
According to the defence (suggestion in cross-exatnination as also the statements under section 342, Cr.P.C.). Allah Ditta P.W. is closely related to the deceased. Mokha appellant stated that wife of Mughla, a brother of Allah Ditta P.W. is the real sister of the mother of Neka deceased. Suggestions of close relation of Allah Ditta were denied by him. On the other hand, he categorically gave the details of his close relation with Mughla and of course through him with the other accused.
According to him, the maternal-aunt of his father is Mst. Bhagan; the mother of Mokha .is Mst.
Sammon and Mst. Bhagan and Mst. Sammon are sisteRs, This relationship is so close and specific that if the witness had told a lie in this behalf, the same could have been exposed by questioning him on the parentage of the two women. The assertion was not brought under challenge. Thus, Allah Ditta, it appears, is related to the accused. If Mokha correctly stated Allah Ditta's relation with Mughla he is also related with the complainant party. Such a witness, who has equal relationship with both the parties and nothing is shown to indicate that earlier he had taken a partison attitude qua the two parties, would not be dubbed as either inimical or interested witness. Two circumstances support this supposition. Allah Ditta as also the other two eye-witnesses, Waryam and Jalla tried to be fair to both the parties and did not attribute any specific role qua the fatal injury to any one of the accused. If they would have been inimical to them, Mughla having the strongest motive qua the earlier occurrence he was badly injured by the son of the deceased and that too in his forehead, would have been certainly attributed by them the role of causing fatal injury to the deceased in this case on his forehead. Not only this they also did not try to exaggerate the role played by Mokha appellant. We, therefore, do not consider them as interested witnesses.
12. The argument of the learned counsel that the eye-witnesses are chance witnesses is also without force. His contention that the normal path for Allah Ditta, Waryam and Jalla from the Dhari of Jalla to Chak No, 551 would have passed about a square towards the north of the place of occurrence did not stand the test of. scrutiny. Although according to the Patwari there were two paths available to the witnesses from the said Dhari-one relied upon by the learned counsel passes a square towards north of the place of occurrence, it is obvious from the site plan that the other path would cross exactly from the Mohga where the occurrence took place. The Dhari of Jalla is to north-west of the spot, diagonally about a square away from it. But along with the (imaginery) diagonal line runs a water-course which starts from the Mohga of occurrence. Chak No, 551 is motioned as touching the south-east corner from where the said water-course starts. Thus a person starting from Jalla's Dhari could take either of the two paths: (i) straight to the Mohga along the diagonally placed water-course; and (ii) the other path first going to the east about a square north of the path and then after traversing about a square turning south east to go to Chak No, 551.
The first path would in no case be longer or inconvenient and if the three witnesses claimed that they while going to Chak No, 551 had to cross the spot and the Mohga, there is nothing unnatural about it. Learned counsel also tried to criticize the depositions of these 3 witnesses with regard to their claim to have collected at the Dhari of Jalla shortly before the time of occurrence. According to him the witnesses had stated before the Police that they had collected in early morning time but at the trial they advanced the time considerably after sun rise. We have considered the so-called discrepancy. No doubt in the statement of Jalla before the Police the word has been mentioned and when .he was confronted with it by translating it as "early morning" but in reality there is no contradiction. Before the police Jalla stated that the other two witnesses, namely, Allah Ditta and Waryam had come to his Dhari at morning time but in the next sentence he asserted that they started from the Dhari for Chak No, 551 at 8-00 a.m. Similarly the other witnesses adequately explained this aspect in their cross-examination. They also explained as to what they meant by the word. No advantage can be given to the accused on account of this aspect either. Learned counsel further argued that none of these witnesses is a Lambardar or a Chairman therefore, it was unlikely that Waryam would have taken Allah Ditta and Jalla for conciliation purposes. The Labradors and Chairmen in the villages do participate in such like conciliations but to say that others, particularly the elders of the family have no part in bringing about reconciliation between the spouses would not be correct. We noticed that Allah Ditta was 60 years of age while Jalla was 71 years of age and both belonged to the caste of Waryam, therefore, there was nothing unnatural in their having accompanied Waryam for the stated purpose.
13. With regard to Mamoora also as earlier discussed, it cannot be doubted that he was present at the time of occurrence. His claim of irrigating his land prior to 6 a.m. has not been refuted. Rather attempt has been made to utilize it for defense purpose. He was undoubtedly present near the spot and had taken his water from the same Mohga which is the place of occurrence, prior to 6-00 a.m.
His real uncle Neka deceased had to take turn from him. It is neither the case of the prosecution nor of defence that son of Neka (who is mentioned in the earlier F.I.R. as Noor Muhammad) was present with him to help in irrigation. The fact that Neka had entered his old age cannot be denied. When a young man, his own nephew is present to offer help, Neka would not refuse it. The water if we count the distance from Killa No, 14 to the Mohga, was to be watched for pilferage and/or loss, etc., through nearly seven Acres if not more. Such a long water-course, if it is the claim of Mamoora was to be attended by Neka by the help of Mamoora, it cannot be described otherwise than natural conduct. Learned counsel also contended that there was no Kassi with Mamoora or Neka, therefore, the story of their irrigating the land was false. This argument is also fallicious. Waryam asserted in examination-in-chief that the deceased had Kassi with him when he was seen by the witnesses for the first time. Otherwise too as discussed above it having been established that Mamoora and Neka were to irrigate their lands on the day of occurrence it is impossible that none of them would have had a Kassi with them.
14. The other discrepancies and so-called improvements pointed out by the learned counsel have adequately been dealt with by the learned trial Judge. There is no reason for us to differ and hold that either they have not been explained or they amount to such contradictions as to discredit the witnesses. We accordingly, agreeing with the learned trial Judge, hold that all the eye-witnesses saw the occurrence.
15. Mokha appellant did not cause any injury to the deceased. He remained present during the course of hearing of the arguments. Although he looks old but even after a decade of the occurrence he is fit to physically participate in such like occurrence. If he would have shared the intention of his co-accused, he might have done some overt act. His presence with the 3 main accused seems established by the ocular evidence but there is such a discrepancy amongst the depositions of the eye-witnesses with regard to the words he uttered at the spot that the same cannot be ignored. If he gave a Lalkara that Neka should be killed, obviously majority of the accused did not attempt to kill him. On the other hand, if he exhorted them to give him a beating this runs counter to the other Lalkara. He is also a Zamindar of the same village and as discussed earlier belongs to the same family as of the complainant party. His mere presence near the place of occurrence for any other reason that with the intention to assault the deceased cannot be excluded. The place of occurrence is on a path and a course and is also a focal point of Mohga at a Rajbah. Innocent presence of a villager at such a place can also be visualized. Keeping in view all these circumstances we extend him benefit of reasonable doubt and while accepting his appeal acquit him. The State Appeal against him is accordingly dismissed.
16. The case against the other accused presents a complex picture. Statements of 2 doctors have to be read together and reconciled but not to the disadvantage of the accused. Although the greater number of injuries found by Doctor Abdul Rauf is on account of the blackehing of the eyes resulting from injury No,1 (and injury No,10 described by him is only the result of another injury and not an independent injury); the number of injuries described by both the doctors comes to about seven. There is, however, a serious difference with regard to an injury on the head. While doctor Abdul Rauf described it a contusion mark 14" x 1" on the right side of the forehead, Doctor Muhammad Yasin described it as a swelling 3" x 2" over the top of the head. Both the locations are so apart that they cannot be one injury. While one doctor Abdul Rauf mentions this injury on the right side of forehead and does not mention any injury on the top of the head, Doctor Muhammad Yasin does not mention any injury on the right side of the forehead. The swelling described by Dr. Muhammad Yasin as injury No,7 could have developed after the examination by Dr. Abdul Rauf and because there was a linear fracture underneath the same, therefore, this subsequent development of the swelling is not unlikely. Thus, Dr. Abdul Rauf could not have noticed it on the day of occurrence. If there was no direct injury on the top of head on the day of occurrence then the fracture underneath the same might not have been the direct result of an independent blow. The blow given on the forehead of the deceased, as the description of injury No,1 and resultant damage shows, must have been a terrific blow with a heavy weapon. The possibility is that while fracturing the frontal bone, this blow also created a linear fracture in the nearby parietal and temporal bones.
Injury No,4 described by the first doctor as merely a contusion mark could have been due to fall on the ground and might have subsided after 2 days when the autopsy was performed or it might have been included in the swelling on the head. Thus, giving all possible reasonable benefit to the culprit in this behalf we cannot hold with certainty that the deceased was given more than one blow on his head. However, it is certain that whatsoever gave him that blow, would not have an intention otherwise than of causing the death of Neka and in any case he would have intended such bodily injury as was likely to cause death. Thus, if the person causing this injury is discoverable, he would be a guilty of A murder. We do not agree with the learned trial Judge that he would have committed an offence under section 304, Part II, P.P.C.
17. The most important question to consider is whether Mughla did cause the blow on the head of the deceased. After careful consideration of the evidence we are not satisfied beyond reasonable doubt, in this behalf. While Mamoora attributes this role to Mughla and there is some indication in the motive evidence that he was most likely to have taken revenge of his own injury on the forehead, we are unable to remove an apprehension from our mind, on account of the statements made by Waryam, Allah Ditta and Jalla P.Ws., that any one of the three might have caused the blow on the head of the deceased. We are of the view that these 3 witnesses have tried to tell the truth and have also tried not to make any exaggeration insofar as the role of each accused is concerned. They did not attribute the head blow to Mughia. Thus, we consider it safe not to rely on the statement of Mamoora alone in this behalf nor is it safe to ignore the statement of 3 other eye- witnesses, therefore, we cannot be certain beyond reasonable doubt that Mughla caused the fatal injury and we hold accordingly.
18. As regards the intention and knowledge of the accused when assaulting the deceased there can be no doubt that they intended to take revenge of the beating to Mokha and Mughla while giving the blows to the deceased the ratio qua head and other parts of the body was 1 to 6. Not only this, it was prosecution case set up in F.I.R. that the first few blows and even the opening blows given by Mughia landed on the foot and hand of the deceased. Three injuries as observed by Dr. Abdul Rauf are on feet, one is on fore-finger of left hand and another is on the thigh. Some of the bones underneath these injuries were fractured. After careful consideration of the evidence in this behalf and making a mental picture of what might have happened at the spot, we are of the view that the common intention in furtherance of which assault was made on the deceased was not more than that of causing grievous hurt with blunt weapon. One undiscovered culprit amongst the accused, who inflicted the head injury might have developed an intention to cause it either during the course of occurrence, or when leaving the spot some one of them might have given a parting blow on the forehead of the deceased when he was lying on the ground. On this finding, none of them can be convicted of a graver offence than under section 325, P.P.C. It was held in Fazal Elahi and others v. The Crown PLD 1953 P C 35 that "unless there be intention or knowledge of one of the kinds specified in section 299, P.P.C. no conviction for culpable homicide can be had." This rule was laid down despite the finding that the internal results of the blows given to the deceased in the said case "were such that one of them was likely to cause death and another might have caused death in certain circumstances", but while dealing with the question of responsibility and culpability in this behalf, their Lordships observed follows:- We have looked in vain for any circumstances, such as might have been visible to a bystander, which can serve in the slightest degree to specialize the intention or knowledge of Fazal Elahi and Fateh Haider (accused), in the manner which is necessary for the purpose of concluding that their act is an act of culpable homicide, although an exactly similar act by two other persons, whose intention and knowledge at the outset were exactly the same as their own, must be regarded as an act of causing grievous hurt only."
19. On the aforenoted reasoning's their Lordships were pleased t hold Fazal Elahi and Fateh Haider guilty under section 325, P.P.C. by application of section 149, P.P.C. In the present case, as discussed earlier, it is not possible to discover the culprit who caused the head injury and thus might have been found guilty of culpable homicide and because the intention and knowledge of all the culprits "at the outset were exactly the same." Therefore, relying on the aforecited ruling w hold that none of the culprits in this case can be convicted of a offence graver than that under section 325 read with section 34, P.P.C.
20. We also, suo motu considered the question of enhancement of sentence in this case. Prima facie it looked to be on the lower side. Mandatory provision regarding compensation has also been ignored. Accordingly while affording opportunity in this behalf we called upon the learned counsel to show cause why the sentences should not be adequately enhanced. He replied that there was no need for it. He also expressed the view that if the State Appeal against acquittal qua offence under section 302, P.P.C. is to be dismissed, the culprits would not gain any advantage in this behalf; if their sentences are enhanced for offence under section 325, P.P.C. learned counsel for the State on the other hand, contended that they are not entitled to any leniency in the matter of sentence. We did not agree with the learned counsel for. the accused that enhancement of sentence for offence under section 325, P.P.C. would, if the State Appeal was to be dismissed, necessarily deprive the culprits of all advantage gained on account of acquittal on charge of murder (section 302, P.P.C.) or even for that matter upon charge of culpable homicide not amounting to murder (section 304, P.P.C.). Sentence under section 302, P.P.C. could be much severe and for offence under section 304, P.P.C. also could be severe than for offence under section 325, P.P.C. The highest permissible limits qua each of these counts are higher but such considerations by them selves cannot be an answer to the demands of law and justice regarding imposition of proper sentence. We considered that keeping in view the number, the nature the location of injuries, the nature of blows and the results produced as also the number of actual assailants when compared with the helpless state of the sole unarmed victim of attack, the learned trial Judge awarded ridiculously low sentence under section 325/34, P.P.C. We accordingly, while maintaining the conviction of Ramzan and Mumraiz under section 325/34, P.P.C. and while converting the conviction of Mughla under section 304, Part II to one under section 325/34, P.P.C. enhance and award to them the sentences of 7 years R.I. each and a fine of Rs, 2,000 each in default of payment of which they shall suffer further one year and nine months R.I. each. The fine of Rs, 6,000 when recovered shall be paid as compensation to the heirs of Neka deceased. Mughla, Ramzan and Mumraiz shall be taken into custody for serving the unexpired part of the sentences as awarded in this judgment.
Sentences enhanced.