' JAVID IQBAL, C.J.--Vide judgment dated 23-4-1980 of the Additional Sessions Judge, Gujrat, Gul Muhammad son of Bagha Khan, aged 65, armed with hatchet (since died in jail) and Noor Hussain son of Imam Din, aged 40, also armed with hatchet, have been convicted under section 302, P.P.C.
And Gul Muhammad for the murder of Muhammad Fazil deceased, aged 51 was sentenced to death plus fine of Rs, 5,000 or in default to undergo two years' rigorous imprisonment, whereas Noor Hussain for the murder of Ghulam Ahmad deceased, aged 40 years, was sentenced to death plus fine of Rs: 500 or in default to undergo two years' rigorous imprisonment. Both of them has also been convicted under section 148, P.P.C. And each of them sentenced to two years' rigorous imprisonment. Noor Hussain was also convicted under section 324, P.P.C. For causing injuries to Muhammad Fazil deceased and was sentenced to two years' rigorous imprisonment plus fine of Rs, 1,000 or in default to undergo six months' rigorous imprisonment. Their sentences were ordered to run concurrently. Maqbool Ahmad son of Fateh Muhammad also armed with hatchet, had committed suicide in jail before the trial, being a lunatic, and, therefore, he was not tried being dead. Muhammad Latif, son of Gul Muhammad armed with Soti, was only convicted under section 323, P.P.C. On two counts for causing simple injuries to Muhammad Fazil deceased and Ghulam Ahmad deceased and was sentenced to one year's rigorous imprisonment plus fine of Rs, 500 on each count or in default to undergo two months' rigorous imprisonment on each count. He was also convicted under section 148, P.P.C. And sentenced to two years' rigorous imprisonment.
Similarly Haq Nawaz son of Maqbool Ahmad armed with Soti was also convicted under section 323, P.P.C. On one count for causing simple injuries to Ghulam Ahmad deceased and was sentenced to one year's rigorous imprisonment plus fine of Rs, 500 or in default to undergo two months' rigorous imprisonment. He has also been convicted under section 158, P.P.C. And sentenced to two years' rigorous imprisonment. The sentences in the case of both of them have been ordered to run concurrently. Both Muhammad Latif and Haq Nawaz because of shortness of their sentences, are on bail at present. There is a direction that if the fine is recovered from all the members of the accused party out of it 3/4th share should be paid to the legal heirs of the two deceased equally in the instant case.
' The relationship amongst the members of the accused party is this: The Phhuphhi of Maqbool Ahmad (since deceased) Mst. Basri was wife of Gul Muhammad and Noor Hussain is son-in-law of Gul Muhammad having been married to his daughter. Muhammad Latif is son of Gul Muhammad, whereas Haq Nawaz is son of Maqbool Ahmad. On the other hand, both the deceased in the instant case are cousins inter se although they are not related in any way to the accused party.
' The present position is that from amongst the members of the accused party Maqbool Ahmad had committed suicide and died in jail before his trial. He is, therefore, not before us. Similarly, Gul Muhammad had died in jail after his trial, conviction and sentence and consequently his appeal has abated and we are also not concerned with him. Thus, there remains in the field Noor Hussain who is behind the bars and Muhammad Latif as well as Haq Nawaz whose sentence has been suspended and who have been admitted to bail. The appeal of the convicts is being taken up and disposed of alongwith the Murder Reference for the confirmation of death sentence awarded to Noor Hussain appellant by this judgment.
2. The occurrence took place at Digarwela on 28-9-1976 in the fields of village Goteryala at a distance of fifteen miles from Police Station Kharian, District Gujrat. Statement (Exh. P.C.) was made by Fazal Ahmad (P.W.2), cousin of both the deceased, at 9 a.m. On the following day i.e, 29-9-1976 at village Panjwaryam 4/5 miles away from the place of occurrence and it was recorded by Muhammad Ali, A.S.I. (P.W.12) who happened to be present there on patrol duty. On the basis of the aforesaid statement formal F.I.R. (Exh. P.C./1) was registered at the police station on the same day at 10 a.m. By Muhammad Sharif A.S.I. (P.W.11).
3. The motive as described in the F.I.R. Is that a day before the occurrence at noon time. Maqbool Ahmad accused (since deceased) had a quarrel and exchange of abuses on the cutting of grass.
However, the matter was patched up. But while leaving, Maqbool Ahmad accused (since deceased) held out a threat that he would avenge the insult.
4. The prosecution has produced three eye-witnesses of the occurrence, namely, Fazal Ahmad (P.W.2), cousin of both the deceased, Maqsood Ahmad (P.W.4), real brother of Fazal Ahmad P.W.
And also cousin of the two deceased and Muhammad Yusuf (P.W.5) son of Muhammad Fazil deceased. Mst. Karam Noor was cited as the fourth eye-witness of the occurrence, but since she had also died before the trial, she could not be produced as such.
5. In the F.I.R. The occurrence is reported to have taken place in the following manner: On the fateful day both the deceased were cutting grass on the spot and near them were present Fazal Ahmad (P.W.2) and Maqsood Ahmad (P.W.4) also cutting grass. In the meantime the members of the accused party armed as described above came to the spot raising Lalkaras and saying that they would not spare Muhammad Fazil and Ghulam Ahmad deceased. On seeing them both the deceased ran towards East in order to save their lives but they were chased by the assailants Maqbool Ahmad accused (since deceased) gave a hatchet blow which fell on the back of the neck of Muhammad Fazil deceased who fell down on the ground. Thereafter Noor Hussain appellant gave second hatchet blow while Muhammad Fazil deceased was in the fallen condition and this blow fell on his left neck. Then third hatchet blow was given to him by Gul Muhammad accused (since died) which also fell on his left neck. Then Muhammad Latif appellant gave him a Soti blow on the back of the wrist of left arm. Thereafter all the members of the accused party chased Ghulam Ahmad deceased. Maqbool Ahmad accused (since deceased) gave him the first hatchet blow which fell on his left neck. Then Noor Hussain appellant gave him the second hatchet blow which fell on his left forehead. Thereafter Maqbool Ahmad accused (since deceased) again gave him a hatchet blow which fell on his left neck and as a result Ghulam Ahmad deceased fell down on the ground and while he was in the fallen condition. Haq Nawaz appellant gave him a Soti blow which fell on the back of wrist of his right arm and the Muhammad Latif appellant gave him a Soti blow which fell on his left shoulder. Thereafter all the members of the accused party decamped raising Lalkaras towards the village side. Both the deceased in the instant case, died on the spot.
The occurrence was witnessed besides Fazal Ahmad (P.W.5) and Mst. Karam Noor, widow of Muhammad Fazil deceased (not produced) who had also been attracted to the spot. The two dead bodies were lying on the spot but out of fear of the members of the accused party. Fazal Ahmad P.W. Did not have courage to report the matter to the police on the preceding night but when he found the opportunity on the next morning he proceeded to lodge the report.
6. All the members of the accused party were arrested on 1-10-1976 by Shamsher Ali S.I. (since deceased). At the instance of Noor Hussain appellant was recovered blood-stained hatchet (Exh.
P.5) which was taken into possession vide memo. Exh. P.I. Dated 1-10-1976. The attesting witnesses of this recovery are Ismail (P.W.7), Muhammad Khan (P.W.8) and Shamsher Ali S.I. (since deceased). At the instance of Maqbool Ahmad accused (since deceased) was recovered blood- stained hatchet (Exh. P.6) which was taken into possession vide memo. Exh. P.J. Dated 1-10-1976.
The attesting witnesses are the same. At the instance of Gul Muhammad accused (since deceased) was recovered blood-stained hatchet (Exh. P.7) which was taken into possession vide memo. Exh. P.K. Dated 5-10-1976. The attesting witnesses are Muhammad Ali, A.S.I. (P.W.12), Muhammad Khan (P.W.8) and Ismail (P.W.7). Sotis (Exhs. P.8 and P.9) were recovered from Muhammad Latif and Haq Nawaz appellants but since they were not stained with blood, they A are of no consequence. According to the report of the Serologist (Exh. P.X.) at page 13 of the printed paper-book, with the exception of one hatchet on which the blood had disintegrated and its origin could not be determined, the scrappings from the other two hatchets were found to be stained with human blood.
7. The members of the accused party in their statements before the trial Court totally denied having participated in the occurrence. They disowned the recoveries and stated that they had been falsely implicated due to enmity. Ch. Muhammad Sadiq I.P. Was produced as D.W.1 who stated that in the course of investigation Haq Nawaz appellant was found innocent by him, whereas the others were found guilty. D.Ws. 2 and 3 were produced in order to present certain documents pertaining to the case. It may be pointed out at this stage that the defence version is that both the deceased in the instant case, were done to death by Maqbool Ahmad accused (since deceased) who was a lunatic and that the other members of the accused party had been falsely implicated in the background of enmity with the complainant side
8. Dr. Ghayyur Alam (P.W.3) conducted post-mortem examination on the dead body of Muhammad Fazil deceased on 30-9-1976 and found on his person an incised wound on the back of neck, an incised wound on the back of neck below the first injury an incised wound on the left side of the neck and an abraded area 10" x 3" on the left forearm including wrist joint. Death in his opinion was due to shock and ' hemorrhage as a result of these four injuries. The third injury was sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was immediate. The first three injuries had been caused with a sharp-edged weapon, whereas the fourth injury had been caused with a blunt weapon. He stated in the cross-examination that the fourth injury on the person of Muhammad Fazil deceased could be the result of fall against hard substance or by friction.
' On the same day at 11-30 a.m. He conducted post-mortem examination on the dead body of Ghulam Ahmad deceased and found on his person incised wound on back and left side of neck, incised wound on front of left side of neck, incised wound on left side of head, contused area 1" x 1/2" on left shoulder and contusion mark 1" x 1/2" on the back of right forearm including wrist-joint. Death in his opinion was due to shock and haemorrhage as a result of these five injuries. The second and third injuries were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was immediate. The first three injuries were caused with sharp-edged weapon, whereas the remaining two injuries were caused with a blunt weapon. In his opinion the fourth and fifth injuries on the dead body of Ghulam Ahmad could not be the result of a fall or friction.
9. We have heard learned counsel for the parties and perused the record. At present there is before us only the appeal of Noor Hussain, Muhammad Latif and Haq Nawaz appellants. Two of their co- accused, namely, Gul Muhammad has since died in jail and Maqbool Ahmad is stated to have committed suicide in jail before the trial being a lunatic. Muhammad Latif and Haq Nawaz appellants are only convicted under section 323, P.P.C. Muhammad Latif appellant is convicted under the aforesaid section on two counts for causing simple injuries to Muhammad Fazil and Ghulam Muhammad deceased and was sentenced to one year's rigorous imprisonment plus fine of Rs, 500 on each count or in default to undergo two months' rigorous imprisonment on each count. He was also convicted under section 148, P.P.C. And sentenced to two years' rigorous imprisonment. Haq Nawaz appellant has been convicted under the aforesaid section on one count for causing simple injuries to Ghulam Muhammad deceased only and was sentenced to one year's rigorous imprisonment plus fine of Rs, 500 or in default to undergo two months' imprisonment. He has also been convicted under section 148, P.P.C. And sentenced to two years' rigorous imprisonment. The sentences in the case of both of them had been ordered to run concurrently.
Both the ocular testimony in respect of both Muhammad Latif and Haq Nawaz appellants is not being corroborated by the recovery evidence because the Sotis which had been recovered from them were not found to be stained with blood and they are, therefore, of no value. We are, therefore, of the considered view that in such circumstances, their conviction and sentence under section 323, P.P.C. Were not proper. We are also of the view that in the circumstances when section 149, P.P.C. Had not been made applicable to the instant case it was not proper to convict and sentence both Muhammad Latif and Haq Nawaz appellants under section 148, P.P.C. In that view of the matter, the convictions as well as sentences awarded to both the aforesaid appellants under section 323, P.P.C. And under section 148, P.P.C. Are hereby set aside and they are acquitted of these charges. The result is that the appeal of Muhammad Latif and Haq Nawaz appellant is hereby accepted. They are already on bail. Their bail bonds shall stand discharged.
' Now remains in the field Noor Hussain appellant who has been sentenced to death for the murder of Ghulam Muhammad deceased plus fine of Rs, 5,000 or in default to undergo two years' rigorous imprisonment. He has also been convicted under section 148, P.P.C. And sentenced to two years' rigorous imprisonment. Furthermore he was likewise convicted under section 324, P.P.C. For causing injuries to Muhammad Fazil deceased and was sentenced to two years' rigorous imprisonment plus fine of Rs, 1,000 or in default to undergo six months' rigorous imprisonment. The sentences in his case were ordered to run concurrently. There is also a direction that if the fine is realised from him out of it 3/4th share should be paid to the legal heirs of the deceased. It may be pointed out at this stage that the parties have entered into a compromise. There are affidavits of Fazal Ahmad P.W. Complainant, Maqsood Ahmad P.W. As well as Muhammad Yusuf P.W. To the effect that they had no grudge against him and that a compromise has been effected between the parties. Fazal Ahmad and Maqsood Ahmad P.Ws. Had also appeared before us in support of their affidavits.
Muhammad Yusuf P.W. Could not appear as he is stated to have gone to Karachi. In consideration of the fact that the parties have entered into a compromise, we while maintaining the conviction of Noor Hussain appellant under section 302, P.P.C., after his sentence from death to that of imprisonment for life. In view of the compromise the sentence of fine awarded to him under section 302, P.P.C. Is remitted. His conviction and sentence under section 148, P.P.C. Are set aside as these were uncalled for in the absence of the application of section 149, P.P.C. To the instant case. In respect of his conviction under section 324, P.P.C. For causing injuries to Muhammad Fazil deceased, he had been sentenced to two years' rigorous imprisonment plus fine. We maintain his conviction and sentence of imprisonment under section 324, P.P.C. Which should run concurrently with the sentence of life imprisonment. But the sentence of fine of Rs, 1,000 awarded under this section is remitted in view of the compromise. The Jail authorities are directed to grant the benefit of the provisions of section 382-B of the Code of Criminal Procedure to Noor Hussain appellant at the time of computation of his sentence of life imprisonment. With this modification the appeal is disposed of.
' The sentence of death awarded to Noor Hussain appellant is not confirmed.