1. NASIM HASAN SHAH, J.-- This judgment will dispose of Criminal Appeal No.134 of 1980 and Criminal Appeal No.135 of 1980, as both of them have arisen out of the same incident namely the murder of Muhammad Latif father of Shafqat Ali (Appellant in Criminal Appeal No.134 of 1980).
2. The incident took place on the 27th of April, 1977 at Chahwela i.e. About 8 or 9 a.m. In the area of village Gulla Maharan, at a distance of three miles from the Police Station Qila Subha Singh in Tehsil Narowal of the Sialkot District. The First Information Report was made at 12.15 p.m. By Shafqat Ali, who appeared as P.W.9 at the trial and is the appellant in Criminal Appeal No.134 of 1980.
3. The case of the prosecution is that on the fateful day Shafqat Ali (P.W.9) was going from canal M.R.Link to his village Gulla Maharan. When he was about one Killa from his village he saw his father Muhammad Latif and Abdus Salam (P.W.8) coming towards the canal. He also saw Fazal Haq, Ashraf and Ali Ahmad alias Boora armed with Dangs; Abdul Haq alias Abdul armed with a Drat; Liaqat and Safdar armed with .12 bore guns (all respondents in Criminal Appeal No.134 of 1980) and Sardar absconder, who has reportedly since been arrested) armed with a revolver and Sota emerging from the wheat field on the southern side of the passage. Fazal Haq raised a Lalkara to the effect that Muhammad Latif should be killed and also gave a Dang blow to Latif, which hit him on his right arm. Abdul gave a Drat blow on forehead of Latif which felled him to the ground. He was then attacked by Fazal Haq, Ashraf, Ali Ahmad and Sardar (absconder) with Dangs. Abdul also injured Latif, with his Drat. Liaqat and Sardar, who were armed with .12 bore guns, as well as Sardar armed with a revolver, fired in the air from their respective weapons. Abdus Salam begged the accused party to spare Latif but no one paid any heed to his entreaties. Talib and Aziz alias Ghulam Haider also came to the spot and saw the occurrence. They to begged for the life of Latif but were threatened with dire consequences by the accused party. Latif was killed on the spot.
4. The medical evidence showed that the deceased had suffered 22 injuries, most of which were caused by blunt weapons while some were caused by sharp-edged weapons. These injuries resulted in the fracture of four ribs on the right side, rupture of the pleura and the lung on the right side as well of the liver. Death was due to shock and haemorrhage.
5. The motive for the murder of Latif was civil litigation between the parties. The appeal pertaining to a pre-emption suit was pending in the Court of District Judge, Sialkot.
6. It was also alleged that 4/5 months prior to the occurrence, Fazal Haq and others committed certain thefts in the house of Ihsanullah, uncle of the complainant. This happened in connivance with Mst. Sughran Bibi wife of Ihsanullah. The complainant party was on the side of Ihsanullah.
7. Another motive alleged was that Ihsanullah had appointed Latif deceased as Mukhtar for managing his lands. A month prior to the occurrence, Fazal Haq and others forcibly ploughed the land of Ihsanullah which led to an altercation between the parties. Fazal Haq then threatened Latif that he would not allow him to remain as Mukthar of Ihsanullah. Security proceedings also took place between the complainant and the accused party.
8. At the trial, the prosecution placed reliance upon the account of the incident as given by Shafqat (P.W.9) supported by Abdul Salam (P.W.8) and Talib (P.W.10), who were eye-witnesses. Reliance was also placed on certain recoveries, namely, three crime empties from the spot, one of which matched with the gun recovered at the instance of respondent Safdar, while the second matched with the gun recovered at the instance of Liaqat. No, opinion could be given as to the third empty.
9. The learned trial Judge convicted all the six respondents (in Criminal Appeal No.134 of 1980) under sections 148 and 302/149, P.P.C. They were sentenced to undergo R.I. For one year on the first count; whereas on the second count each of them was sentenced to imprisonment for life and also to pay a fine in the sum of Rs.2,000, out of which compensation was to be paid to the legal heirs of the deceased.
10. The above conviction and sentences were challenged by the aforesaid convicts by means of to appeals in the High Court bearing Nos.1040 of 1978 and 245 of 1979. Fazal Haq, Muhammad Ashraf, Liaqat and Ali Ahmad filed the first one, while the second was filed by Safdar and Abdul Haq.
11. Both the appeals were heard by a learned Single Judge of the Lahore High Court who came to the conclusion that reliance could be placed upon the eye-witnesses produced at the trial because except for Shafqat (P.W.9) who was the son of the deceased, the other to witnesses were not related to the accused and were independent. Furthermore despite thorough cross-examination by the defence no material was brought on the record to cast doubt on their credibility.
12. The learned Judge, notwithstanding the above finding, was of the opinion that Liaqat and Safdar (respondents 1 and 2 in Criminal Appeal No.234 of 1980 before us) were entitled to the benefit of doubt because the only allegation against them was that they had fired in the air and the deceased had no firearm injury nor was it the case of the prosecution that these to respondents had fired at the deceased. The appeal filed by them (Cr.A.No.245/79) was accepted and Liaquat and Safdar acquitted.
13. With regard to the remaining four accused, namely, Fazal Ahmad. Ashraf, Ali Ahmad and Abdul Haq, appellants in Criminal Appeal No.1040 of 1978 before the High Court, the, learned Judge opined that although the doctor had found 22 injuries on the person of the deceased but most of these injuries were caused by blunt weapons, though there were few incised wounds as well, but most of the injuries were not on the vital part of the body. From this circumstance, the learned Judge inferred that the accused were anxious only to teach a lesson to the deceased for the motive mentioned already. Rather than to kill him. So, he thought that their conviction under section 302/148, P.P.C. Was not maintainable. He, accordingly altered their conviction under section 302/148, P.P.C. To one under section 304 (Part-1)/34, P.P.C. And sentenced each accused to ten years' R.I. Alongwith the benefit of section 382-B, Cr.P.C. In the matter of computation of their sentence. The sentence of fine was maintained and was ordered to be treated as compensation to be paid to the legal heirs of the deceased.
14. Feeling aggrieved, Shafqat Ali son of Muhammad Latif deceased filed a petition for leave to appeal against the order and judgment dated 13-2-1980 passed in Criminal Appeal No.1040 of 1978, whereby the conviction of four respondents was altered from section 302/149. P.P.C. To section 304 (Part-1/34), P.P.C. And Criminal Appeal No.245 of 1979, whereby Liaqat and Safdar were acquitted, namely, Criminal. Petition No.176 of 1980.
15. After the institution of the above petition for leave to appeal the convicts also filed a petition (Cr.P.No.210 of 1980) which was barred by six days, to challenge their convictions under section 304 (Part-1) read with section 34, P.P.C. Both the above petitions were taken up together and leave granted in both, by condoning the delay in the last mentioned petition with a view to examining the propriety of the acquittal of Liaquat Ali and Safdar from the charge of murder, the alteration of the conviction of the remaining accused from section 302, P.P.C to section 304 (Part-1), P.P.C and the question whether the accused were at all liable to be convicted.
16. We have heard Khawaja Sarfraz Ahmad, learned counsel for the counsel in Criminal Petition No.135 of 1980 and perused the relevant evidence with his assistance.
17. We are inclined to agree with the Courts below that in the circumstances of this case the ocular evidence could safely be relied upon and the case of the prosecution that the deceased had' met his death at the hands of respondents Nos. 2, 3, 4 & 6 (in Cr.A.No.134/80) was well-founded. In this view of the matter, the question for consideration is whether the learned Judge was right in altering the conviction of the said respondents from one under section 302 to one under section 3014 (Part- 1), P.P.C." The learned Single Judge appears to have thought that the beating inflicted on the deceased by them was merely to teach him a lesson rather than to cause him death. We have perused the medical evidence and find that the deceased suffered the following injuries:- (1)A lacerated wound on the dorsal and inner aspect of left big toe with facture and dislocation of first metatorsal bone. Wound was 2" x 1-- " bone deep.
18. (2)A contusion mark 3--- x1--" n front of left leg in its middle.
19. (3)A contusion mark 4" x 1" in front of left thigh.
20. (4)A contusion mark 5" x 1" on outer aspect of left thigh.
21. (5)A contusion mark 3" x 1" on the outer aspect of left thigh in its upper part.
22. (6)A contusion mark 4 -- x 1" on the left buttock upper part.
23. (7)Multiple abraided contusions from left shoulder to left loin.
24. (8)Two contusions marks 7" x 1 --"below right shoulder blade, 1V apart.00 (9)A contusion mark 2 -- x 1" on the right buttock.
25. (10)An incised wound 1 --x -- bone deep on right side of forehead.
26. (11)A contusion mark 2 --" x11" on the back of right upper arm with fracture of right numerous bone.
27. (12)A contusion mark 10" x 1" on right side outer aspect of chest.
28. (13)A contusion mark 7 --x 1" on right side of chest at lower costal margin.
29. (14)A contusion mark 5" x 1" on outer aspect of right buttock.
30. (15)A contusion mark 4 --x 1" on the outer aspect of right thigh.
31. (16)A contusion mark 4 --x -- " with fracture of right ankle.
32. (17)A. Contusion mark 3" x 1" on outer aspect of right leg with facture of right fibule bone.
33. (18)An incised wound 1" x -- in front of right leg, 5" above the ankle.
34. (19)An incised wound 1" x 1" in front of right leg, 7" above the right ankle.
35. (20)An incised wound, 1 --x --"x bone deep in front of right leg in its middle.
36. (21)An incised wound 1" x --x bone deep, 31" below right knee joint.
37. (22)An incised wound 1" x --x bone deep on the right knee cap with cut through and through the knee cap ( factured into to pieces).
38. A perusal of the injuries reveals that the deceased was not given the beating merely to teach him a lesson but that he was beaten mercilessly with the manifest intention to doing him to death. Out of these, injuries Nos.8, 11 & 12 were individually as well as collectively sufficient to cause death in the ordinary course of nature. Therefore, the learned Judge in the High Court was wrong in thinking that the-- common object of the respondents was merely to teach a lesson to the deceased and not to cause his death.
39. We are, therefore, of the opinion that, in these circumstances, the respondents had been properly convicted by the trial Court under section 302, P.P.C. And their acquittal on this count and alteration of their conviction to one under section 304 (Part-1), P P.C. Was erroneous in law.
40. Coming to the case of Liaquat Ali and Safdar respondents, who were given benefit of doubt and acquitted, we feel that as their presence at the spot was testified to by the eye-witnesses, this fact could not be doubted and we have already found that their testimony could be relied upon.
41. Moreover, their evidence was corroborated by the recovery of the guns from both Liaquat Ali and Safdar respondents, each of which had matched with crime empties recovered from the spot. In these circumstances, there was hardly any question of giving the benefit of doubt to them simply on the ground that they had not caused any injury to the deceased. The participation of these to respondents having been proved their case clearly fell within the mischief of section 149 of the Pakistan Penal Code. They had formed an unlawful assembly after arming themselves with deadly weapon with the common object of causing death to Latif. We would, therefore, set aside the order of their acquittal and convict them also under section 302/149, P.P.C.
42. The convictions and sentences imposed by the trial Court on all the respondents are accordingly restored. Respondents Nos.l and 5 (Liaquat Ali and -Safdar), who are on bail, shall be taken into custody for serving out their sentence.
43. The result is that we would accept Criminal Appeal No.134 of 1980. All the six respondents, namely, Liaquat Ali son of Karam Elahi, Fazal Haq son of Inayat Ullah, Muhammad Ashraf son of Karam Elahi, Ali Ahmad alias Boora son of Sardar, Safdar son of Noor Ahmad and Abdul Haq alias Abdul son of Noor Ahmad are convicted under section 302, P.P.C. Read with section 149, P.P.C. And sentenced to life imprisonment. However, the benefit of the provisions of section 382-B, Cr.P.C. Is allowed in computing the sentence they have yet to undergo.
44. The order of the High Court with regard to the sentence of fine as also the direction that it should be treated as compensation and paid to the legal heirs of the deceased, is maintained.
45. The result is that Criminal Appeal No.134 of 1980 is allowed, while Criminal Appeal No.135 of 1980 is disposed of.
46. M. Z. M.