MUHAMMAD MUNIR FAROOQI, J.-Muhammad Shafi, his brother Ghulam Nabi and their nephews Faiz Ahmad and Risa Ahmad were tried by the learned Additional Sessions Judge, Lahore, in Camp at Gujranwala, for committing the murde (of Lal (deceased) and causing simple injuries to Ahmad (P. W. 8r with blunt and sharp-edged weapons in furtherance of their common intention on 3rd April 1967 at Chhahwela in the area of village Bhiga Bhigi of Police Station Ahmadnagar, District Gujranwala. Learned trial Judge finding each of than guilty convicted and sentenced them as under:- The sentences under section 323/324/34, P. P. C. Are to take effect if the sentence of death is commuted to some other substantial sentence and shall run concurrently with each other. The four convicts have filed this appeal, but Muhammad Shafi appellant is reported to have died in the jail in the meanwhile, so the appeal in respect of this convict has abated under section 431, Cr. P. C. The record is also before us under section 374 of the Criminal Procedure Code for the confirmation of death sentences and the two matters, i.e., the appeal and the reference, are being disposed of by this judgment.
2. Mst. Khurshid Bibi (P. W. 10) widow of Lal (deceased) was the daughter of Barkhurdar, elder brother of Bahawal (P. W. 9) and after his death her mother Mst. Resham married Bahawal P. W., so all of them lived together in the same house. Ahmad P. W. Is a maternal cousin of Mst. Khurshid P.
W. And to assist them in cultivation he also lived with them. Mst. Khurshid Bibi and her uncle Bahawal jointly owned two squares of land in this village. Out of this land they had leased out 38 killas to Ghulam Nabi appellant in lieu of 21 "Mannis" of "Moonjf". The remaining land was being jointly cultivated by Bahawal and Lal (deceased) themselves.
3. A day before the occurrence Ahmad P. W. And Lal, (deceased) were going round the fields and found Mst. Aimna, wife of Ghulam Nabi appellant cutting away sittas from her own barley crop. Lal (deceased) forbade her resuting in exchange of abuse between them. On this Aimna went away' threatening him that she would avenge this insult.
4. It is alleged that on the eventful day at Pacca Chhahwela Bahawal, Ahmad P. Ws. And Lal (deceased) were cutting fodder, from their shatala crop when the four appellants Shati armed with knife and the others with dangs, suddenly arrived and attacking Lal (deceased) caused him a number of injuries wit's their respective weapons. Ahmad P. W tried to intervene bat he was also dealt with in the same manner. On tire alarm raised by Bahawal and his niece Mst. Khurshid Bibi P.Ws. The appellants away. Lal and Ahmad were immediately removed to, Civil Dispensary, Ahmadnagar reaching there at about 11-30 a.m.
5. Dr. Muhammad Latif Qureshi sent ruqqa Exh. P. L. At 11-30 a.m. To Police Station Ahmadnagar intimating the S. H. O. About the arrival of L31 (deceased) in the hospital with multiple injuries on his person. On receipt of the above information Ghulam Raza, S. I. (P. W. 14) came there and enquired from the doctor vide ruqqa Exh. P. N. About the condition of Lal (deceased then alive) and was informed vide endorsement Exh. P.N./l, that he was unconscious and unfit to make a statement. The Sub-Inspector then enquired about the condition of Ahmad P. W. Vide Exh. P. M. And was informed by the doctor vide his endorsement Exh. P. W./1 that he was in a fit condition to make a statement.
He accordingly recorded the statement Exh. P. A. Of Ahmad P. W. About this occurrence and forwarded it to the police station, where a case under section 307, P. P. C. Was registered against the appellants at 12-20 p.m. Vide Exh. P. A./I, which forms part of this record as first information report. He also prepared injury statement Exh. P. R. In respect of Ahmad P. W. He did not draw out any injury statement about Lal as the doctor was already examining his injuries at that time.
6. The Sub-Inspector then proceeded to village Bhiga Bhigi and on the inspection of the spot took into possession blood-stained earth from there and sealed it into a parcel vide Exh. P. B. He also recorded statement of Bahawal and Mst. Khurshid Bibi P. Ws. During the investigation of this case there he received intimation from the hospital vide Exh. P.A./2 that Lal had succumbed to his injuries, so he came back to the hospital and taking the dead body into his custody despatched it to the mortuary at Gujranwala after preparing the necessary injury statement Exh. P. S. And the inquest report Exh. P. T. On the death of Lal the case was converted to that under section 302, P. P. C.
The Sub-Inspector then went back to the place of the occurrence. On 4th April 1967, he arrested Shafi, Riaz, and Fiaz appellants. On the personal search of Muhammad Shafi appellant he recovered knife (P. 2) vide Exh. P. D. And took it into his possession. Exh. P.D./ 1 being its rough sketch.
Riaz Ahmad appellant led the Sub-Inspector to the house of Ghulam Nabi appellant and produced dang (P. 3) from behind a box lying in one of its rooms which was taken into possession vide Exh. P.
C., Fiaz Ahmad appellant got recovered dang (P. 4) from another room of the same house which was taken into possession vide Exh. P. E. These weapons were not made into sealed parcels as none of these articles was stained with blood. The Sub-Inspector got prepared the site plan Exh. P.
F. Along with its duplicate Exh. P. F./1 from Khushi Muhammad Patwari and putting his notes in red ink on the same signed it in token of its correctness. Exh. P. U. Is the rough site plan of the house of Ghulam Nabi from where dangs (P. 3 and P. 4) were recovered by the Sub-Inspector. Foot Constable Muhammad Jamil brought back from the mortuary tahmat (P. 5) of Lal (deceased) which he produced before the Sub-Inspector vide Exh. P. G.
7. The parcel of the blood-stained earth was sent to the Chemical Examiner through Mukhtar Ahmad, Foot Constable, which was found to be stained with human blood vide his report Exh. P. X.
And that of the Serologist Exh. P. Y.
On the night between 8th and 9th April 1967, the Sub---Inspector arranged a nakabandi on the Dharowal bridge on the strength of a secret information and succeeded in intercepting Ghulam Nabi appellant, who came there riding a horse with dang (P. 1) in his hand. He arrested him and took dang (P. 1) into his possession vide Exh. P. Q. Ghulam Nabi appellant was found injured so the Sub-Inspector prepared the injury statement Exh. P. W. About it and sent him to the hospital at Ahmadnagar for medical examination, where Dr. Muhammad Latif Qureshi (P. W. 1) examined him on 9th April 1967 vide Exh. P. O. And found the following injuries on his person:-
(1) A lacerated wound -- x -- " x 1/8 " on the left side of the head, 1" left of midline at the junction of head and forehead. The wound was covered by scap and process of healing had started.
(2) A bruise 2 -- ' x -- " oblique in direction situated at outer side of middle of right upper arm of red colour.
(3) A bruise 5-- ' x 1' situated at upper part of outer aspect of right shoulder joint of red colour.
(4) A bruise 2 -- x 2 -- " at the back of right shoulder joint of red colour.
The same doctor had examined Lal (deceased) in his life--time on 3rd April 1967 and found the following injuries on his person:-
(1) An incised wound -- x 1/8 x 1/3 ' situated at the back of right arm on upper third.
(2) An abrasion of -- x -- ' situated at outer side of middle of right forearm.
(3) A bruise 1 -- x -- " situated at medial side of right forearm at lower part, and crepitus was present at the lower part of right ulnar bone.
(4) An incised wound 1-- x 1/12" x 1" on the back of right hand, 1' above the right ring finger.
(5) An incised wound 1/3 x 1/8" x ----- on the back of right hand above the right middle finger.
(6) A lacerated wound of --" x -- x -- " situated at the back of right hand, -- above the juncture of right index and middle finger.
(7) A lacerated wound of the size of 1/3'' x 1/8 x -- " on the back of right index finger at upper part, there was fracture of upper phalanx of right index finger.
(8) A bruise of wound 2 -- " x 1' situated at outer and interior side of left leg, 1 ----- above the left ankle joint, there was fracture of left tibia under the knee.
(9) An incised wound 1" x 1/8" x -- " on the front of right leg, 6" above the right ankle joint.
(10) A lacerated wound 1" x -- " x 1/3 " on front of right leg, 3 -- " above the right ankle.
(11) An abrasion 1" x 1/8 " transverse in direction situated at upper third of outer side of right leg.
(12) An incised wound -- " x ----- x -- " on the back of left forearm. There was fracture of left ulna.
(13) A lacerated wound 1-- x 1/3 " x -- " at the back and outer side of left forearm at upper third.
(14) A lacerated wound -- " x -- x 1/3 " on the back of upper third part of left forearm.
(15) A lacerated wound -- x -- x 1" on upper-most part of left forearm at the back of left elbow.
There was a fracture of upper and of left ulna.
Injuries Nos. 7, 8, 12, 15 were grievous while injuries Nos. 1, 2, 4 to 6, 9 to 11 and 13 to 14 were simple.
Injury No. 3 was kept under observation. Injuries Nos. 1, 4, 5, 9 and 12 were caused by sharp-edged weapon and the remaining by blunt weapons.
He had also examined Ahmad P. W. On the same day vide Exh. F. K. And found the following injuries on his person :-
(1) A lacerated wound 2--' x -- x -- ' on the right side of top of skull, 1 -- on the right of mid-line, 5' behind forehead antero postero in direction.
(2) A bruise 8" x 1" oblique in direction on inner side of front of left forearm and upper arm, 3' above the elbow-joint going downwards of red colour.
(3) A bruise 3"x 1' at front of left upper arm, 1 -- " above the left elbow joint.
(4) A bruise 3" x 1' oblique direction at outer side of middle of left upper arm.
(5) A bruise 3" x 2" at the back of left elbow joint of reddish blue colour.
(6) An incised wound 1" x -- x -- " on front of right leg, 4 -- below right knee-joint.
(7) A bruise 4" x 1" oblique in direction at middle of outer slide of right leg of reddish colour.
(8) An incised wound --" x 1/6 " x -- " on front of middle of right leg. There was marked swelling on right leg at this site and crepitus was present on the line of right tibula at this site.
(9) An incised wound -- " x -- x 1/3 " at right side of right ankle. Joint.
(10) An incised wound -- ' x -- x -- at front of left leg, 1" below left knee joint.
(11) An incised wound 1" x -- x -- at front of left leg 3 -- below left knee-joint.
(12) An incised wound 1 -- " x -- x 1/3 " on front of left leg, 4" above the left ankle-joint.
Injuries Nos. 2 to 7 and 9 to 12 were simple while injuries Nos. 1 and 8 were kept under observation.
8. Dr. Sajid-ul-Qayyum had performed post-mortem examination on the dead body of Lal Din (deceased) on 4th April 1967, at 2-45 p.m. And found the following injuries vide Exhs. PH and PH/1:-
(6) An incised wound 1/3" x 1/8" x -- at the back of right hand above right middle finger.
(7) A lacerated wound -- x -- ' x -- " at the back of right hand and the back of right index finger.
(8) A lacerated wound 1/3 x 1/8" x -- " at the back of right index finger at upper part and upper phalynx was fractured.
(9) A bruise 2 -- x 1" at outer side of left leg above ankle joint (1 -- ") left tibia and fabula fractured at this site.
(10) An incised wound 1" x 1/8" x -- " at front of right leg, 6' above the ankle joint.
(11) A lacerated wound 1" x -- x -- ' at front of right leg, 3 -- ' above the ankle joint.
(13) An incised wound -- " x -- x -- " at back of left forearm fracture of left ulna.
(14) A lacerated wound 1 1/3 " x 1/3 x -- " in the upper part of back of left forearm.
(15) A lacerated wound -- x -- x 1/3 at upper third and back of left forearm.
(16) A lacerated wound -- x -- x 1" at the back of left elbow ulna fractured at this site.
(17) A contused wound in the middle of back of left chest, underlying rib (5th left) fractured.
(18) A bruise 1' x -- on the back of left abdomen at the renal area. Corresponding with lumber vertebra fractured at its left side of body and transverse process.
Remarks: The injuries which had been inflicted ante-mortem with sharp and blunt weapons had resulted in multiple fractures including that of the left 5th rib and lumber vertebra lacerating the left lung and left kidney. The death was due to bleeding and shock consequent upon these injuries and sufficient in the ordinary course of nature to cause his death.
9. Before the enquiry could start this doctor had gone abroad so he could not be examined as a witness in the commitment proceedings and it was notified to the appellants that he would be produced in the Sessions Court, but he had not returned when the trial commenced so the above post-mortem report Exhs. P. H. And P. H./1 was got proved through Islam--ud-Din Dispenser (P. W.
6) who had worked with Dr. Sajid-ul---Qayyum for long time and was thus conversant with his handwriting. He had also confirmed in his statement that this doctor bad gone to England and had not returned to Pakistan till then.
10. On the basis of the statement of this witness that there was no likelihood of his early return learned trial Judge had allowed this secondary evidence to prove the carbon copy of the post- mortem report Exhs. P. H. And P. H./1 but he had erroneously transferred it to the record under section 509, Cr. P. C. Even Foot Constable Sher Muhammad who had been entrusted with the service of summons on the said doctor and had reported about his non-avaiLahility due to his presence in U. K. Had not entered the witness-box to prove this report.
11. In the course of the arguments learned State counsel submitted an application under sections 428 and 375 of the Criminal Procedure Code to remove this error and properly bring these documents on record which was allowed in the interest of justice so as to enable us to arrive at a correct conclusion about the cause of the death of Lal (deceased). Learned trial Judge was accordingly directed to record the A statement of Sher Muhammad Foot Constable about the non- availability of Dr. Sajid-ul-Qayyum and the difficulty in procuring his attendance without unnecessary delay and expense as envisaged by section 32 of the Evidence Act in view of the observation of their Lordships of the Supreme Court in Allah Ditta v. The State (PLD 1958 SC 290).
We also directed him to send for Islam-ul-Din, Dispenser along with the original post-mortem report and re-examine him after he had compared it with the carbon copy as held in Nityananda Roy v. Rash Behari Ray (AIR 1953 Cal. 456). Consequently the trial Judge had in compliance with this order recorded the statements of these two witnesses in the presence of the appellants and their counsel and resubmitted the record to this Court along with his certificate as required under section 428, Cr. P. C., Exhs. P. H. And P.H./1 have thus been duly brought, on the record to be read in evidence in this case.
12. In addition to the above detailed medical evidence and that of the recoveries the prosecution has relied for its case on the testimony of Ahmad (P. W. 8), Bahawal (P. W. 9) and Mst. Khurshid (P.
W. 10) for the ocular account of the occurrence, who had duly supported the above narration at the trial except that Ahmad P. W. Had denied any knowledge about the quarrel of Lal (deceased) with Mst. Aimna, wife of Ghulam Nabi appellant a day before the occurrence which is said to have formed the motive for this deadly assault on Lal (deceased). The trial Judge had, however, transferred his statement recorded by the committing Magistrate on 19th December 1967 to this file under section 288, Cr. P. C. On the request of the Public Prosecutor to be read in evidence against the appellants in this case, wherein he had mentioned this fact.
13. At the close of the trial the appellants denied all these allegations. Muhammad Shafi stated that:- "Mst. Khurshid and Bahawal P. Ws. Wanted to enhance the consideration of lease and Ghulam Nabi accused did not agree to it and, therefore, they wanted to eject him. There was an ill-will between them and Ghulam Nabi accused.
On account of that ill-will the P. Ws. Entangled me in this case. I am a T. B. Patient since six or seven years. At the time of occurrence I was confined to bed. I am Innocent."
Ghulam Nabi stated:- "Mst. Khurshid and Bahawal P. W. Wanted to enhance consideration of the lease of land or in the alternate they wanted me to vacate their land. I did not agree to either of the proposals. Therefore, they entangled me in this case. They have seen my brother Shafi and my nephew Riaz and Faiz accused visiting me. Therefore, Mst. Khurshid and Bahawal entangled them also in the case with me.
Ali and Wali were proclaimed offenders in murder cases. They abducted a girl and brought her to the house of Lal and kept her there. Lal passed on that girl to somebody else and not to Ali and Wali. Ali and Wali then started attacking Lal since before this occurrence. Ali and Wali killed Lal, the deceased, and we have been falsely implicated because the party of, Lal deceased were afraid of mentioning the names of Ali and Wali. The purpose of entangling me in this case is to press me to vacate the leased land. Wali was killed in an encounter with the police about one and a half months ago. Ali is still absconder. The abducted girl owned three squares of land. I am innocent."
"Mst. Khurshid and Bahawal P. Ws. Have got ill-will with Ghulam Nabi accused over the lease of the land. They entangled me in this case with my uncle Ghulam Nabi accused. Jalal the father-in-law of Ahmad P. W. Is a tenant of Allah Ditta in our village. Habib son of Allah Ditta along with others murdered Mirza the father of Riaz accused. Habib was convicted and sentenced life imprisonment.
Allah Ditta in conspiracy with Jalal and Ahmad P. W. Entangled us in this case. I am innocent."
"Mst. Khurshid and Bahawal P. Ws. Have got ill-will with Ghulam Nabi accused over the lease of land. They entangled me in this case falsely with my uncle Ghulam Nabi accused. My father Mirza was murdered by Habib and others. Habib is a son of Allah Ditta Lambardar. Jalal, the father-in- law of Ahmad P. W. Is the tenant of Allah Ditta Lambardar who is our enemy. Allah Ditta in conspiracy with Jalal and Ahmad P. W. Entangled me in this case. I am innocent."
None of them led any evidence in defence.
14. Learned trial Judge accepting the prosecution evidence found all the appellants guilty of these charges as stated above, which findings have been assailed before us on the following grounds:-
(1) That the first information report was not recorded at 12-20 p.m. As alleged by the prosecution, but was drawn out after prolonged deliberations;
(2) that there was no motive for the appellants to attack Lal (deceased) who had many other enemies interested in disposing him of in that manner;
(3) that the prosecution evidence was discrepant about the nature and the possession of Ghulam Nabi appellant on the land in dispute and its area;
(4) that no disinterested witnesses had been produced to support the prosecution case and the above-named three witnesses were admittedly inimical towards the appellants and their evidence could not be relied upon without corroboration from some independent source which was badly lacking in this case;
(5) that secondary evidence could not be led to prove the post-mortem report as no attempt had been made to effect service of any summon on the doctor concerned even on the second occasion, so it could not be used as legal evidence against the appellant;
(6) that the nature of injuries suffered by Lal deceased negatived any intention of murder or even knowledge that his death was likely to result from such injuries, so their offence, if proved could not go beyond that under section 325, P. P. C.
15. On going through the record we are not inclined to agree with the learned counsel for the appellants except in respect of his assertion about the nature of the offence committed by the appellants.
16. About the first information report it was urged that it was not recorded at 12-20 p .m. And as a Oasis for the same it was pointed out that the Sub-Inspector had purposely avoided to enter the time when the query Exh. P. M. Was addressed to the doctor and the latter had likewise omitted to mention the time when he endorsed his reply Exh. P. M./1. The fact that the formal Exh. P. A./1 had been entered in the daily diary at 12-20 p.m. On the same day would set at rest all doubts about it as no attempt was made to send for it to challenge the time of any of its entries to show that the relevant entry had been accelerated by holding up the other entries thereof.
17. It was then urged that according to Bahawal (P. W. 9) the death of Lal had taken place a minute after his arrival in the hospital, i.e., at about 11-30 a.m., while Ahmad P. W. Had fixed it one hour later and Mst. Khurshid P. W. Had corroborated them by stating that the police on arrival In the village at noon time had told her that Lal had died in the hospital which would fix the time of his death between 11-12 a.m. He seems to have misread the statement of Mst. Khurshid Bibi P. W. About it by picking up a solitary sentence from its context which was silent about the time. She had never said that straightaway on their arrival in the village the police had told her about the death of Lal. Her statement in this respect was as follows:- "The police reached our village at about noon-time. The police came 5/6 hours after Ahmad and Lal were taken to the hospital. Bahawal P. W. Did not go to the hospital along with the injured persons. The police told me that Lal had died in the hospital. At that time Bahawal was with me."
A perusal of this statement does not show at all the time when in fact the police had made the disclosure to her about the death of Lal (deceased). In fact the information of his death was communicated by the doctor to the Sub-Inspector. In this village through memo. Exh. P. J. Clearly mentioning 5-00 p.m. As the time of his death when he had to suspend the investigation at the spot to go back to the hospital for the necessary formalities in despatch of the dead body to the mortuary. The Sub-Inspector must have broken this news to the P. Ws. Including Mst. Khurshid Bibi P.
W. After the receipt of this ruqqa. Ahmad and Bahawal did not seem to have the correct sense of time as would appear from the disparity in the time given by them about the death of Lal. It would be too much to expect that the doctor was also hand in glove with the police in fabricating false documents with wrong entries about the time of these different events. This contention about the time of the first information report and other relevant documents is thus not well founded. Ahmad P. W. Of course had made some con--cessions in favour of the appellants and in that attempt had also deposed that his statement was recorded by the Sub-Inspector in the evening time, but it was not got clarified that it was the statement in Exh. P. A. Or some other statement to which he was referring so this admission could be of no avail to the defence.
18. It would also be wrong to say that there was no motive for the appellants to carry out this deadly assault on La: (deceased) as Ghulam Nabi appellant had himself admitted it unequivocal terms in his statement under section 342, Cr. P. C that he had obtained 38 killas of land from Bahawal and Khurshid P. Ws. On lease who wanted to enhance the consideration on the threat of his eviction from therein, which clearly indicated that some dispute did exist between them about the distribution of the produce of this land. This was exactly what Bahawal P. W. Had stated at the trial. He had deposed that he had told Ghulam Nabi appellant that he would not give him land on lease any further as he was not paying the due share. Mst. Khurshid Bibi P. W. Had also conceded that it was right that Lal (deceased) used to demand share of batai from Ghulam Nabi appellant who used to say that he would not give any share to Lal. This sentence from the statement of Mst.
Khurshid Bibi P. W. Would itself show that it was in reply to a suggestion made by the defence itself which clearly indicated that by then some dispute had actually arisen about the sharing of the crop. Such a situation would naturally have created an excuse for Lal (deceased) to object to the cutting of sittas by Mst. Aimna, his wife. This admission by Ghulam Nabi appellant itself established the motive part of the prosecution case, however, weak it may appear in the normal course of the events.
19. The assertion that there were some discrepancies about the nature of the possession of Ghulam Nabi on the land in dispute and its area is also of no consequence. Mst. Khurshid Bibi P. W. Who had stated that she and Bahawal owned 38 killas of land and half the land was given to Ghulam Nabi appellant, in lieu of one-third of the produce could not have known the actual state of affairs as she did not seem to know the exact area of their own land even, which was managed by Bahawal (P. W. 9). She was mostly absorbed in the domestic duties and would not have known the exact area leased out to Ghulam Nabi and the terms thereof. Learned counsel for the defence also referred to the statement of Ahmad where he had stated that out of these two squares 27 killas were given by them on lease to Ghulam Nabi appellant but this seems to be clerical error as in the first information report Ahmad had clearly stated that the area of the land was 38 killas and not 27 killas. At least Ahmad P. W, was not confronted with this part of the F. I. R. To find out which of the two statements was correct. Anyhow the statement of Ghulam Nabi P. W. Had left no room for doubt that he was cultivating 38 killas of land as a tenant under Bahawal and Mst. Khurshid P. Ws.
20. Coming to the assertion that in this background Ahmad, Bahawal and Mst. Khurshid P. Ws. Were interested in falsely implicating the appellants in this case giving a free pardon to their actual assailants, Ali and Wali, was equally without any substance as total substitution of the assailants being unnatural in normal course of human conduct had rarely found favour with the Courts. The fact that Ahmad and Bahawal had admitted the names of all these persons who were unfavourably disposed to Lal (deceased) would rather demonstrate that they were quite honest in making their deposition at the trial but all the same they emphatically refuted that any one of them had attacked Lal (deceased) and Ahmad P. W. It would be impossible to believe asp already observed that arty one of these enemies of Lal (deceased) had attacked them and they had tamely let them off and involved the appellants in this case. It was quite a big village, but not a soul had stirred to say anything about it at any stage of the investigation or in the course of the inquiry or finally at the trial to save the innocent persons from the consequences of false implication in a case of so serious a charge entailing at least long term imprisonment.
21. As regards the background of this assault of Lal (deceased) the fresh dispute about the terms of future occupation of the land could not be treated as a "prior motive" which could taint their evidence so as to exclude it from consideration g for that matter. In taking this view we are fortified by the observations of their Lordships of the Supreme Court in Nazir and others v. The State (PLD 1962 SC 269). We are, therefore, not prepared to dub them as "interested witnesses" and exclude their evidence as unworthy of credence without sufficient corroboration which of course was not at all lacking in this case, the hall-mark of Injuries on Ahmad P. W. Being one of the most important factors in this behalf in addition to the motive discussed above. The number of culprits (four) was such as would be required for an attack of the kind which is the subject-matter of the present case as they knew that Ahmad and Bahawal lived with Lal (deceased) and they might be there to intervene in the matter their house being close to shatala where Lal was cutting fodder at that time. The number of injuries inflicted by them 15/18 on Lal (deceased.) and 12 on Ahmad P. W. Was commensurate with the number of appellants and compatible with the type of the weapons used by them. Shaft appellant (since dead) was the real brother of Ghulam Nabi appellant and the other two appellants were their nephews. On account of this relationship they were equally interested in avenging the insult to Mst. Aimna Bibi, the wife of Ghulam Nabi appellant. These Inherent circumstances would afford further corroboration, if required, to the statements of these prosecution witnesses as in above-quoted Nazir's case. The same view was later expressed by Cornelius, J. (as he then was) in Shihab Din's case (PLD 1964 SC 177) observing asunder :- "It has been observed by this Court in a number of cases that the mere fact of relationship does not necessarily render a witness's account of the occurrence subject to doubt. Provided his presence is proved beyond doubt (as here by the presence of injuries on the body of P. W. 8 Ahmad Khan) and the number of persons accused is not out of proportion to the nature of their enterprise and the results they produced (which factors are also satisfactorily established in this case) such witnesses are entitled to be believed, as against a mere plea of false implication on the part of the accused persons."
22. The assertion that the occurrence having taken place In open field close to thoroughfare in broad-day-light it must have been witnessed by some other persons, who were not included in the calendar of witnesses could not stand the test of scrutiny either. The place of occurrence being the shatala field situate at the back of their house was quite screened from the thoroughfare which was on the other side of the house and the assault was so short lived that it could not have attracted the attention of passers-by or other neighbours, if arty, so it would be incorrect to say that independent evidence has been shut out in this case especially when the defence had failed to bring on record the name of any other person as having arrived on the scene at the time of the occurrence. We have therefore, no reason to discard the evidence of Ahmad, Bahawal and Mst.
Khurshid Bibi P. Ws. Merely on account of their relations inter se or a few minor discrepancies here and there in their statements.
23. As a result we hold the four appellants including Muhammad Shafi (since dead) wore responsible for this violence resulting in the death of Lal and injuries to Ahmad P. W. This appeal having abated in respect of Muhammad Shafi we are left with the case of the remaining three convicts only.
24. We are then left with the last contention of the learned counsel for the appellants that the offence if established, could not go beyond that under section 325/34 of the Pakistan Penal Code.
This point called for a close analysis of the injuries suffered by Lal (deceased) which as detailed above were 15 according to the evidence of Doctor Muhammad Latif Qureshi (P. W. 7) and 18 according to Dr. Sajid-ul-Qayyum who held the authority vide Exhs. P. H. And P.H./1. The former had examined Lal (deceased) in his lifetime but did not find any injury on his right shoulder or middle of back of left chest or back of left abdomen mentioned at Nos. 1, 17 and 18 of the post-mortem report Exh. P. H.
As regards the originally noticed 15 injuries detailed in the medico-legal report Exh. P. H. Of Dr. Muhammad Latif Qureshi none was located on any vital part of the body of Lal (deceased). 11 of the injuries were on the hands and arms and the remaining four on the legs. Only four of these 15 injuries were grievous, first and second being on the left ulna bone under injuries Nos. 12 and 15, both of which had contributed to its fracture, while the third grievous injury had caused a fracture of upper phalanx of right index finger and the fourth grievous injury had resulted in the fracture of left tibia under the knee. The rest of the 11 injuries were simple in nature. None of these injuries were considered individually dangerous to life by the said doctor. The additional three injuries discovered later during the post-mortem examination were never brought to tire notice of this doctor by the Public Prosecutor to explain why he omitted to record them so we have to accept the injuries given in medico-legal report Exh. P. H. As correctly recorded by Dr. Muhammad Latif Qureshi (P. W. 7). Keeping in view the nature and seat of these injuries and the weakness of the motive, it can be safely urged that the appellants did not intend to cause his death. They even could not be attributed the knowledge that any of these injuries was likely to cause death. The two of the three additional injuries mentioned at Nos. 17 and 18 of post-mortem report were apparently held responsible for the death of the deceased involving fracture of 5th rib and lumber vertebra underneath which had lacerated the left lung and the left kidney resulting in bleeding and shock.
This glaring discrepancy in the report of the two doctors could only be resolved if Dr. Sajid-ul- Qayyum was available for his cross---examination at the trial. May be that 5th rib and lumber vertebra were fractured due to the fall of Lal (deceased) on the ground after the receipt of other injuries. The laceration to the left lung and kidney by the fractured rib and lumber vertebra resulting in bleeding and shock leading to his death was in all probabilities a result which the appellants could never have contemplated. In a case Fateh Beg v. Crown (PLD 1952 Lah. 275), the autopsy on the dead body of Muhammad Din (deceased in that case) showed multiple injuries which were categorised by the doctor under 14 heads including patches of contusion on the right and left sides of his chest varying from 5' x 5--- and 3' x 3--- with six lower ribs on the right side and four on the left side fractured piercing the lungs causing his death, on account of shock and haemorrhage, Rehman, J. (as he than was) had observed as under:- "They actually did cause grievous hurt inasmuch as the ribs of the old man were broken.
Unfortunately the ends of the broken ribs entered the lungs of the deceased and killed him but that was in all probability, a result which the appellants never contemplated."
The same view was taken in Yara and another v. The Crown (AIR 1929 Lah. 456), wherein the death of the deceased was likewise caused by shock and multiple injuries inflicted by sotas including fracture of five ribs.
25. Learned State counsel relying on Ahmad Khan v. The State (PLD 1961 Lah. 543), urged that it cannot be Laid down as an invariable rule that if vital parts of the body of the victim are spared the offence can in no case amount to murder if death ensures because though the vital parts of the body of a person may be spared he may be given an extremely large number of injuries on the other parts of the body and killed by that means.
It perhaps escaped his notice that in this case although there were 28 injuries, six of them being grievous in nature, three with sharp-edged weapon on legs and left hand and the' other three with blunt weapon involving fractures of the knuckle of the middle finger, the thumb of the left hand and the left forearm, with external haemorrhage and shock causing his death, their Lordships came to the conclusion that it was not one of those cases which would attract the definition of murder and altered the conviction of the appellants to that under section 326/34, P. P. C. Only.
The second case relied on by the learned State counsel was Falak Sher v. The State (PLD 1962 Lah.
728), which was a case of continued merciless beating with lathi resulting in the multiple injuries with death on the spot for a very strong motive, lead no application in view of the very serious nature of his injuries and the result thereof.
26. The injuries in the present case being lesser in number and lighter in nature as compared with the above three cases we have no doubt in our mind that the appellants neither Intended to commit the murder of Lal (deceased) nor knew that any of these injuries were likely to cause his death. Taking this view of the matter we set aside their conviction and sentences under section 302/34, P. P. C. And altering their conviction to that under section 325/34, P. P. C. In respect of death of Lal (deceased) reduce their sentence to rigorous imprisonment for D seven years each with a fine of Rs. 500.00 each which if recovered shall be paid to the heirs of the deceased as compensation under section 544-A of the Criminal Procedure Code and in case of default they shall further undergo rigorous imprisonment for six months each. Their convictions under sections 324/34 and 323/34, P. P. C. For causing injuries to Ahmad P. W. With sharp-edged and blunt weapons in furtherance of their common intention shall stand along with sentence imposed upon them by the learned trial Judge for these offences. We, however, direct that three sentences shall run concurrently.
Under section 302/34, P. P. C.
Under section 324/34, P. P. C.
Under section 323/34, P. P. C.Death to each for the murder of Lal (deceased).
Rigorous imprisonment for one year each for causing simple injuries to Ahmad P. W. With a sharp-edged weapon.
Rigorous imprisonment for one year each for causinginjuries to Ahmad P.
W.With blunt weapons.