SARDAR MUHAMMAD DOGAR, J.----Appellants Hamal (45/46), son of Meer Muhammad, Allah Bakhsh (26/27), son of Jamalan, Pathan (27) son of Jan Muhammad, Imam Bakhsh (35/36), his brother Ghulam Hussain (28/29), sons of Nabi Bakhsh, were tried by Additional Sessions Judge, Dera Ghazi Khan, for having committed the murder of Shah Ali and having launched murderous assault on P.Ws. Dur Muhammad and Hazur Bakhsh, alongwith acquitted accused Doda, Nur Muhammad, Rasul Bakhsh and Lal Bakhsh.
Muhammad Bakhsh, the tenth accused named in the F.I.R. Was murdered during the trial of the case. They have been convicted and sentenced as under:-- Hamal and Allah Bakhsh appellants.Death sentence under section 302/149, P.P.C., with a tine of Rs.5,000 each, or three years' R.I., in default of payment of fine. Five years' R.I., under section 307/149, P.P.C., with a fine of Rs.2,000 each, or one year's R.I. in default of payment of fine. Hamal appellant has also been sentenced to three years' R.I., under section 148, P.P.
C., with a fine of Rs.1,000, in default whereof to suffer six months' R.I.
Pathan, Imam Bakhsh and Ghulam Hussain, appellants.Imprisonment for life, under section 302/ 149, P.P.C., with a tine of Its. 3,000 each, or in default to suffer three years' R.1. Five years' R.I. under section 307/149, P.P.C. with a fine of Rs.2,000 each, or in default to suffer one year's R.I. Three years' R.I. under section 148, P.P.C. with a fine of Rs.1,000p or in default to suffer six months' R.I. each.
The convicts have filed appeal. The learned trial Court has sent up Murder Reference for confirmation of death sentence in respect of Hamal and Allah Bakhsh appellants. As both the matters arise out of the same judgment, they are being disposed of by one judgment.
2. The occurrence in this case took place at Degarwela on 8-12-1978, near Bund Muhammadwala, in the area of village Lundan, Police Station Harrand. F.I.R. (Exh. P.A./1) was recorded at the Police Station at 9 p.m. On the same day by Faiz Muhammad, M.H.C. (P.W. 5), on receipt of statement (Exh. P.A.) of Nabi Bakhsh complainant, recorded by Bashir Ahmad, A.S.I. (P.W.12) at 5.30 p.m., in village Tohli where Bashir Ahmad A.S.I. Was on patrol duty.
According to the F. I. R. The prosecution case briefly is that 5/6 days prior to the occurrence Umar Heyat, maternal-cousin of Nabi Bakhsh complainant was insulted and was given thrashing by appellants Hamel, Allah Bakhsh and Pathan. Shah Ali deceased, brother of Umar Heyat, Dur Muhammad, Hazur Bakhsh P.Ws. And one Dost Muhammad who are relatives of Umar Hayat, gave beating to Hamal and insulted him to avenge the insult of Umar Hayat. The respectable from both sides attempted for compromise and approached Hamal twice or thrice, but Fazal refused to compromise saying that he is Baluch and he will avenge his insult in a peculiar manner. It is stated that on the day of occurrence at Degarwela Shah Ali deceased, Dur Muhammad, Hazur Bakhsh and Ghulam Rasul were going to their houses after performing Jumma prayer in Qasba Tibbi Lundan, followed by Nur Muhammad and the complainant at a short distance. When Shah Ali etc. Reached near Bund Muhammadwala, appellants Hamal and Ghulam Husain armed with guns, Pathan armed with Kulhari, Imam Bakhsh, armed with a Kulhara, Allah Bakhsh armed with a sword and the remaining (acquitted accused including Muhammad Bakhsh (since murdered) armed with Sotas, came out of the bushes. Hamal raised a Lalkara and exhorted his companions that Shah Ali etc. Should not be allowed to escape alive and they should be taught lesson of insult, on which Allah Bakhsh appellant gave a blow with sword to Shah Ali, Imam Bakhsh gave an injury with Kulhari, Pathan caused injuries with Kulhara to Dur Muhammad while the remaining accused caused injuries with their Sotas and the butts of the guns to Shah Ali deceased, Dur Muhammad and Hazur Bakhsh P.Ws. Ghulam Rasul, Nur Muhammad, Karim Bakhsh P.Ws. And the complainant tried to intervene by beseaching the assailants, but they were threatened by the accused saying that in- case they came forward they will be murdered. The assailants after causing injuries to Shah Ali, Dur Muhammad and Hazur Bakhsh, went away to their houses alongwith their weapons. After some time Shah Ali died on the spot. Dur Muhammad was taken to hospital at Dera Ghazi Khan by his father Karim Bakhsh, who had reached the spot after the occurrence.
Bashir Ahmad, A.S.I., who had recorded the statement of the complainant after reaching the spot prepared inquest report on the dead body of Shah Ali deceased and despatched the dead body for post-mortem examination, which was conducted by Dr. Ghulam Farid (P.W. 3) at 4 p.m. On 9-12-1978.
At the time of post-mortem examination, the doctor noted three linear abrasions on the back at both renal area, a bruise on the right renal area, one incised wound around the right knee-joint, at lower level, cutting the right tibia, with all blood vessels and one incised wound, muscle deep, on the lateral surface of the right ankle-joint just above the lateral malleolus transversely.
According to the opinion of the doctor the deceased died of the injury on the right knee because of loss of blood. The other injuries were declared simple.
The same doctor examined Hazur Bakhsh P.W. On 9-12-1978 on the request of police. He noted one abrasion on the posterior surface of the right thumb, with swelling. The injury was declared simple.
P.W. Dur Muhammad was medically examined by Dr. Abdul Waheed, Medical Officer, D.H.Q Hospital, D.G. Khan on 8-12-1978. The doctor noted 15 incised wounds on his person. Nine injuries were declared simple. For six injuries X-ray was advised. After X-ray injury No. 8 was declared grievous as there was fracture of fibula bone lower part while the rest of the injuries kept under observation were declared simple. Injury No. 8 has been described as under:-- "Incised wound, 8 --" x 2' x bone deep, starting from outer side of the right leg and ending on the outer side of the right foot.
3. Appellants Hamal, Pathan and Allah Bakhsh were arrested on 17-12-1978 by Bashir Ahmad, A.S.I. Hamal led to the recovery of rifle (P.
4), from his house, which was taken into possession vide memo. Exh. P.H., on 22-12-1978. On the same day, Pathan led to the recovery of blood-stained Kulhari (P. 5) from his house, which was taken into possession vide memo. Ex. P.J. Allah Bakhsh led to the recovery of blood-stained sword (P. 6) which was taken into possession vide memo. Ex. P.K. (Recoveries of Sotas were also effected on the same day at the instance of acquitted accused Nur Muhammad, Rasul Bakhsh, Doda and Lal. Muhammad Bakhsh (deceased-accused) had also led to the recovery of Sota). These recovery memos were attested by Umar Hayat (P.W. 7), Bashir Ahmad, A.S.I. (P.W. 12) and given up P.W. Khan Muhammad. (No recovery was effected from imam Bakhsh appellant after his arrest. Similarly, no recovery was effected from appellant Ghulam Hussain. He in fact, had been admitted to pre-arrest bail and was, therefore, not arrested, although his formal arrest was shown).
4. After completion of necessary investigation, the challan was put to Court.
5. At the trial the prosecution in all produced 12 witnesses. (The gist of the evidence of Dr. Ghulam Farid (P.W. 3), who had performed the post-mortem examination of Shah Ali and had medically examined Hazur Bakhsh (P.W. 11) had already been noted above.
Nur Muhammad (P.W. 8), Dur Muhammad (P.W. 9) and Hazur Bakhsh (P.W. 11) have been examined for eye-witness account. In addition to the Investigating Officer, Umar Hayat (P.W. 7) has been examined to prove the recoveries of weapons of offence from the appellants. The eye-witnesses have also stated regarding the motive for the occurrence. The evidence of the remaining witnesses is more or less of a formal nature. Nabi Bakhsh, who had lodged the F.I.R. Could not be examined as he was an absconder in a murder case, which was registered against him after the present occurrence. The remaining eye-witnesses and Khan Muhammad, the other witness of the recoveries, were also given up. Reports of the Chemical Examiner (Exh. P.O.) and that of the Serologist (Exh. P.N.) were also tendered in evidence. According to the report of the Serologist, human blood was found on Kulhari (P. 5) and Sword (F. 6).
6. Out of the three eye-witnesses examined at the trial, Dur Muhammad (P.W. 9) and Hazur Bakhsh (P.W. 11) had received injuries in the occurrence. Dur Muhammad has briefly stated that on the day of occurrence at about Degarwela he alongwith Shah All deceased, Hazur Bakhsh (P.W. 11) and Ghulam Rasul were going from Tibbi Lundan to their houses and when they reached Bund Muhammad Wala, near Tal Dinga, appellants Hamal and Ghulam Hussain, armed with guns, Imam Bakhsh and Pathan, armed with hatchets, Allah Bakhsh armed with sword, Muhammad Bakhsh (murdered during trial), Nur Muhammad, Rasul Bakhsh, Doda and Lal Khan, emerged from Jai bushes. Hamal gave a challenge that he will take revenge from Shah Ali, himself and Hazur Bakhsh for his insult, whereafter Allah Bakhsh gave a sword blow to Shah Ali, Pathan gave a hatchet blow on his head. After that all the accused attacked all of them.
As a result, Shah Ali was murdered while he and Hazur Bakhsh received injuries. Nabi Bakhsh, Karim Bakhsh (P.Ws. Not produced) and Nur Muhammad (P.W. 8) reached the spot and saw the occurrence. Regarding motive he has stated that Umar Hayat P.W. Was insulted by Hamal, Allah Bakhsh, Rasul Bakhsh and Pathan. In retaliation, Hamal was insulted by him, Shah Ali, Dur Muhammad, Hazur Bakhsh and Dost Muhammad. Hamal had threatened that he would avenge his insult by killing them.
Nur Muhammad (P.W. 8) and Hazur Bakhsh (P.W. 11) have corroborated Dur Muhammad (P.W., 9). In addition, both of them have stated in cross-examination that Shah Ali had given Kulhari blows to Imam Bakhsh.
Umar Hayat (P.W. 7) and Bashir Ahmad, A.S.I. (P.W. 12) have stated about Hamal, having led to the recovery of rifle (P. 4) Pathan having led to the recovery of blood-stained hatchet (P. 5) and Allah Bakhsh having led to the recovery of blood-stained sword (P. 6), from their residential Kothas. Both were found stained with human blood. The prosecution case thus consists of medical evidence, evidence of motive, eye-witness account and the evidence of recoveries.
7. Except Imam Bakhsh appellant all others have pleaded false implication and have denied recoveries. Hamal appellant has stated that he alone had insulted Umar Hayat, but has denied his having been insulted by the complainants.
Imam Bakhsh has also denied the prosecution allegations. In answer to the question "Why this case against you", he has stated:-- "A week prior to the present occurrence an altercation took place between me and Umar Hayat P.W. During the scuffle his turban went of and he took it as a Baluchi insult. He threatened me that he would avenge his insult. On the day of occurrence I alongwith Azim Khan (complainant of the cross-case) were going from. Tibbi Lundan to our house after Jumma prayer. As we reached Rod Dinga near Band Muhammad Wala, Shah Ali deceased, Omar Hayat and Dur Muhammad P.Ws. Emerged out of Jai bushes, armed with hatchets. They challenged and then attacked on me. Omar Hayat and Shah Ali deceased gave one injury each to me which landed on my face and neck. The attack of Dur Muhammad was missed because of the interception of Azim Khan. In the meantime Khan Muhammad and Amir Bakhsh reached the spot. They injured Shah Ali and Dur Muhammad in order to save my life. Omer Hayat managed to run away. I was later on medically examined. The police duped us on the pretext that a case will be registered against the complainant party according to our version. But they sided the complainant party and challaned us arbitrarily. We then lodged the cross-complaint."
8. Six witnesses have been examined in defence. Dr. Nazir Ahmad, Medical Officer, D.H.Q. Hospital, D.G. Khan (D.W. 2) had medically examined Imam Bakhsh. He has stated that he had noted two incised wounds on the person of Imam Bakhsh. Injury No. 1 was on the right side of head and face, the upper end of which was at the level of upper most border of right ear. Injury No. 2 was on the back of right side of neck 3" from the ear. Injury No. 1 was declared grievous after X-ray which was performed by Dr. Muhammad Ashraf Khan (D.W. 1). In cross-examination D.W. Has stated that he had not informed the police regarding the admission in hospital of Imam Bakhsh for his injuries. Jan Muhammad (D.W. 3) and Amir Bakhsh (D.W. 4) have corroborated the version put forth by Imam Bakhsh. In cross-examination both of them have stated that they had not actually arrived at the scene and were few Karams away when Imam Bakhsh had fallen unconscious on the ground after having received the injuries at the hands of Shah Ali (deceased), Umar Hayat and Azim had snatched the hatchet from Dur Muhammad, P.W. Both of them have also stated that neither Azim nor anyone of them was injured. Both of them have also stated in cross-- examination that none of them moved the higher authorities in respect of false involvement of innocent persons in the murder of Shah Ali deceased. D.W. 4 has also stated that except two injuries, one by him and one by Jan Muhammad D.W. 3, Shah Ali was not given any injury by anyone.
Rab Nawaz, Honorary Daffedar, B.M.P., Driggari (D.W. 5) and Mushtaq Ahmad, Lance Daffedar, BMP (D.W. 6) were examined on behalf of Ghulam Husain appellant. Rab Nawaz had produced Roznamcha while Mushtaq Ahmad stated that he was Incharge, BMP Post Driggari, where Ghulam Husain was working as a Moharrir. He produced Roznamcha to show that from 7-12-1978 to 10-12-1978 Ghulam Husain remained present at the post and had been recording entries in the Roznamcha cross-examination he admitted that Nabi Bakhsh, father of Ghulam Hussain accused, was also an employee of B.M.P. He has also stated in cross-examination that the Roznamcha produced by him was not bound nor was on printed forms and was in loose papers, which were stitched with ordinary thread and the needle was still in the thread.
9. Learned counsel for the appellants has contended:-- (1)that the motive as urged has not been established as second incident of Hamal having been insulted has not been proved, (2)that the medical evidence falsifies the ocular account given by the P.Ws. And that the eye-witnesses have suppressed the injuries of Imam Bakhsh appellant, (3)that the P.Ws. Are inter-related and so interested, that from Dur Muhammad P.W., no other P.W. Was present at time of occurrence, (4)that the evidence of recoveries has come from inimical witnesses and so not worth consideration, (5)that the Investigating Officer in this case acted in a biased manner as he had avoided to register the versions of appellants party, (6)that the counter-version put forth by Imam Bakhsh appellant is confidence inspiring and worth acting upon, and (7)that the presence of Hamal and Ghulam Hussain appellants at the spot at the time of occurrence in view of the fact of their having not used the guns by firing is doubtful.
10. Learned counsel for the State/ Complainant gave controverted the contentions of the learned counsel for the appellants and have defended the judgment of the trial Court.
11. All the three eye-witnesses have stated regarding the incident of Hamal having been insulted by the complainant party. Although Nur Muhammad (P.W. 8) has admitted in cross-examination that he was not present at the time of this incident, but Dur Muhammad (P.W. 9) and Hazur Bakhsh (P.W. 11) have not only positively stated that incident had happened but have also deposed that they were also with Shah Ali deceased when Hamal was insulted. Except, discrepancies, regarding time of the incident having taken place, there is nothing on record to discard their evidence on this account. Discrepancy with regard to the timing of such incidents is somewhat natural particularly when the P.Ws. Come to the witness-box after a lapse of quite some time, as in this case.
The statement of Hamal appellant admitted the first incident and asserting that the same had taken place between him alone and the other party also stands contradicted by the statement of his co-appellant Imam Bakhsh, who has stated that turban of Umar Hayat had fallen when he had quarrelled with him. The second incident has to be considered in the light of the first incident, as the latter was stated to be the consequence of the first one. The fact of the first incident having been admitted by the two appellants is also a fact which corroborates the statements of P.Ws 9 and 11 regarding the second incident having happened. As such, we do not agree with the learned counsel for the appellants that the evidence of the prosecution does not inspire confidence.
The argument of the learned counsel for the appellants that the medical evidence falsifies the statements of the eye-witnesses, is based on the portions of the statements of the P.Ws. Wherein each of them in different words has stated that all the accused had caused injuries to the deceased and the witnesses, has no force. The two incised injuries on the person of Shah Ali are clearly stated to have been caused by Allah Bakhsh and Imam Bakhsh appellants, by P.Ws. 11 and 8. Dur Muhammad P.W. Has corroborated their statements with regard to the injury caused by Allah Bakhsh. Dur Muhammad P.W. Has clearly stated regarding first injury having been given to him by Pathan appellant. Hazur Bakhsh (P.W. 11) has corroborated him. It is after the description of these injuries that each one of them has stated that thereafter, all the accused attacked all of them. This method of narration of occurrence at the best can be termed as over statement and cannot be considered as contradiction of the medical evidence, particularly when a large number of injuries, were found on the person of Dur Muhammad and Shah Ali deceased had also received other injuries than the two specifically described. Hazur Bakhsh was also found injured. In such al situation the Court has to sift and weigh the evidence so as to exclude false implication and exaggeration. The learned trial Court obviously following this principle has acquitted four co-accused of the appellants. Further examination and consideration of the evidence in this context brings out one contradiction regarding Ghulam Husain appellant, who according to the eye-witnesses had caused injuries with the butt of the gun to Dur Muhammad, while as a matter of fact Dur Muhammad was not found to have suffered any injury with blunt weapon. We will consider this fact, later on, while considering the case of Ghulam Husain individually.
There is no denying the fact that the eye-witnesses are related to each other. Their evidence has to be judged according to the occasion, and place of occurrence. The case of the eye-witnesses is that they were returning from another village after performing Jumma prayers and were going to their Basti, which means, that where the occurrence had taken place there was no Abadi close by, as such only persons who were accompanying the deceased could have seen the occurrence. Since all of them had gone for Jumma prayers, their being together while returning to Basti, was not unnatural. Their presence at the spot, therefore, cannot be doubted.
Moreover, Hazur Bakhsh and Dur Muhammad P.Ws. Were found injured and the presence of Dur Muhammad has not been denied by the appellants.
The contention of the learned counsel for the appellants that the statement of Umar Hayat P.W., who had witnessed the recoveries at the instance of Allah Bakhsh, Pathan and Hamal appellants should be discarded, for the reason of his being interested, as brother of 'the deceased and also for the reason that in spite of the fact that respectable residents of the Basti from where the recoveries were effected were, available but none was asked to attest the recoveries, does not find favour with us, for the reason that the complainants in this case belong to a different village and the recoveries were effected from the Basti of the appellants. In such a situation, it is quite imaginable that it would have been difficult for the police to obtain the assistance of anyone from the Basti of the appellants for attesting the recoveries. The contention that Umar Hayat being brother of the deceased should not be believed, also does not find favour with us, for the reason that if Umar Hayat had any intention of coming up as a false witness, he could well have been included in the list of the eye-witnesses of the main occurrence. Moreover, his statement stands corroborated by Bashir Ahmad, A.S.I. To disbelieve whom no case has been made out: The other factor which has influenced our mind is that if police had wanted to plant recoveries, Hamal would not have been shown to have led to the recovery of rifle, instead gun would have been planted upon him, because the prosecution case is that he was armed with a gun. In this view of the matter, we do not agree with the learned counsel for the appellants that the evidence of recoveries should be discarded.
No particular incident has been brought out to hold that the, Investigating Officer in this case was biased. As noted above, if Bashir Ahmad, A.S.I. Had any bias, he would not have shown Hamal appellant to have got recovered rifle and instead he would have boosted up the case by planting gun on him. The fact of the other version having not been registered, is also not weighty, for the reason that Imam Bakhsh injured appellant had remained admitted in D.H.Q. Hospital, D.G. Khan E and if Imam Bakhsh had been keen to get the case registered, he could have either asked the doctor, who had examined him, to inform the police officially of his admission in hospital, as injured, which would have definitely taken note of, or would have approached the higher authorities by himself. He has not stated that he did anything in this regard. Had the Investigating Officer any special consideration for the complainants, he would have advised the complainant party to make some statement regarding the injuries of Imam Bakhsh appellant. Had he made any preliminary investigation so as to strengthen the case, he would have definitely come to know that Imam Bakhsh had also received injuries in this case and for that reason also he would have advised the complainants, to come up with some explanation or would have recorded some explanation in the F.I.R.
As a matter of rule when a plea is advanced by the appellant, the evidence of prosecution and the plea advanced by the appellant has to be considered in juxtaposition. But we thought it prudent to first examine the prosecution evidence so as to know whether the F prosecution by itself has a good case or not. Learned counsel for the appellants had also raised the same point. So having considered the prosecution evidence first, we now take up the plea put forth by Imam Bakhsh appellant to examine the same in juxtaposition with the prosecution case. The plea of Imam Bakhsh is that in fact Shah Ali deceased accompanied by Umar Hayat and Dur Muhammad P.Ws. Armed with hatchets had attacked him while he was accompanied by Azim Khan, that Umar Hayat and Shah Ali has given one injury each, on his face and neck, while the injury aimed at by Dur Muhammad P.W. Was warded of by the interception of Azim Khan and that in the meantime Khan Muhammad and Mir Bakhsh D.Ws. Had reached the spot and had given injuries to Shah Ali and Dur Muhammad while Umar Hayat had run away. He has stated that the motive for the occurrence was the scuffle between him and Umar Hayat, in which turban of Umar Hayat had fallen and he had taken it as a Baluchi insult.
He was no doubt found injured. Regarding his injuries the prosecution witnesses in cross-examination have stated that he had suffered injuries at the hands of Shah Ali. D.W. 3 and D.W. 4 have corroborated the plea advanced by him regarding this occurrence.
Both the D.Ws. Have clearly stated that when they reached the place of occurrence, he had fallen unconscious, which means, that he was not in a position to have seen as to how and in what manner Dur Muhammad and Shah Ali were injured by D.Ws. 3 and 4. Half of his statement therefore, regarding injuries suffered by Dur Muhammad and Shah Ali at the hands of D.Ws. Is not correct and has to be ruled out of consideration. Both the D.Ws. Are related to Imam Bakhsh. The case of Imam Bakhsh is that the complainants had falsely implicated nine persons in spite of the fact that none of them excepting himself was present at the spot. If D.Ws. 3 and 4 or for that matter Azim Khan regarding whom it is stated that he had warded of the blow being aimed by Dur Muhammad, were present at the spot, there was no reason why the complainants would not have named these persons as accused in spite of the fact that according to the D.Ws. They have named nine innocent persons. The complainants would not have spared these persons, had they been responsible for the injuries caused to Shah Ali and Dur Muhammad. It cannot be believed that Dur Muhammad, who had received 15 injuries, would have left persons who had mercilessly caused him 15 incised wounds and would have named entirely different persons. It is imaginable that he could have named some more person but the exclusion of actual assailants is not believable. The plea that Umar Hayat was also accompanying the assailants of Imam Bakhsh is also not confidence inspiring, for the reason that had he witnessed the occurrence in which his brother had died, he would have definitely come as an eye-witness and would have become the complainant. The other factor is that it seems hardly possible to believe that Dur Muhammad and Ali, who are alleged to have been armed with hatchets and had the assistance of Umar Hayat, armed with a hatchet, would have suffered such a large number of injuries so meekly at the hands of D.Ws. 3 and 4, when they had already succeeded in falling down Imam Bakhsh. The fact of the D.Ws. Having not received even a single injury also speaks of their being not present at the spot. We have already observed regarding the presence of eye-witnesses and have considered their presence at the spot worth reliance. In these circumstances, no doubt is left in our mind that the plea advanced by Imam Bakhsh has no truth and substance. The same is, therefore, rejected.
We have considered the contention of the learned counsel for the appellants that the presence of Ghulam Husain and Hamal was doubtful, for the reason that in spite of the allegation of having been armed with guns, none of them used the guns by firing. We do not think that this ground alone is sufficient to consider the presence of 14 these appellants to be doubtful. The fact of their having not used the guns can be for two reasons, firstly, that their companions were sufficiently armed with other weapons to achieve the desired result and, secondly, that they might have considered it proper to avoid, firing so that other persons are not attracted to the place of occurrence on hearing the firing.
Hamal appellant had a motive and the prosecution has teen able to prove the same. Specific allegation of his having resorted to Lalkara by each of the witnesses has also been stated. As such, we have non doubt that Hamal was present at the spot and had participated in then occurrence in an effective manner.
The case of Ghulam Husain appellant, however, stands on different footing. Although we do not give much weight to the defence evidence led by him, as the Roznamcha said to have been prepared bys him was in loose papers and the possibility of its preparation later on, cannot be ruled out, but the fact remains that the clear allegation against him of having caused an injury with the butt of the gun to Dur Muhammad stands contradicted by the medical evidence. There is no allegation that he had anything to do with the earlier incident which formed the motive for the occurrence. He was serving in Border Military Police as Moharrir. He was relative of the other appellants. The complainant might have thought that if he is left out he may pursue the case of other appellants by using his position as an employee of B.M.P. And so might have by way of exaggeration, named him. His presence at the spot is not proved beyond doubt. He is, therefore, given the benefit of doubt and acquitted. The participation of other appellants stands proved without any shadow of doubt. Their conviction is, therefore, upheld.
However, we have taken into account the fact that Hamal appellant; has, even according to the prosecution, not caused any injury to the deceased and it has not been clearly stated that Allah Bakhsh was responsible for the injury on Shah Ali, which had resulted into his! Death We feel that the extreme penalty of death is not called for in their case also. We, therefore, alter the sentence of death of Hamal and Allah Bakhsh appellant to sentence imprisonment for life. The: sentence of fine on all the appellants is maintained. With the above modification, the appeal stands dismissed. The sentence of death in respect of Hamal and Allah Bakhsh appellants is not confirmed.
Appellants, whose appeal has been dismissed, shall be given the benefit of the provisions of section 382-B, Cr. P.C.
Death sentence not confirmed.