1. This is an appeal by Sheikh Muhammad 65, Shah Muhammad 60, Jan Muhammad 70, sons of Ismail, Rashid 40, Idrees 21, sons of Bundoo, Shane 25, son of Sikandar, Yaseen 40, Jamil 30 and Zahoor 30, against their conviction by learned Additional Sessions Judge, Multan, who vide judgment, dated 23-1-1982, sentenced them to one year's R.I, and a fine of Rs.200 and in default two months' R.I. Each under section 148, P.P.C. And to imprisonment for life and a fine of Rs.4,000 and in default two years' R.I. Each under section 302/149 P.P.C. All the sentences were ordered to run concurrently. It was directed that half of the amount, if recovered, shall go to the heirs of Chakra deceased as compensation under section 544-A, Cr.P.C.
2. Allah Ditta complainant filed Criminal Revision No. 86 of 1982, seeking enhancement of sentence of the accused. It was ordered to be heard alongwith the appeal. This judgment will dispose of both the matters together.
3. The occurrence in this case took place on 19-6-1980, at 6.00 a.m. Near Bhaini of Hassan Muhammad on a path in Chak No. 42/10-R, about 11 Miles from P.S. Khanewal, District Multan (now District Khanewal). The F.I.R. Exh. P.N. Was recorded on the same day at 7.30 a.m. At the Police Station by H.C. Muhammad Sharif P.W. 6 at the instance of Allah Ditta P.W. 9.
4. Allah Ditta complainant stated in his F.I.R. That on 19-6-1980, at 5.30 a.m., his brothers Chakra deceased and Jaafar P.W. Started from their house on a cycle to attend hearing of a case in a Court at Khanewal. Chakra deceased was driving the cycle whereas Jaafar P.W. Was sitting on a rear carrier. They were being followed by him and Ghulam Muhammad P.W. On a cycle. At about 6.00 a.m., they reached the Bhaini of Hassan and Majid. They saw Idrees, Rashid, Yaseen, Shan alias Shane, Zahoor, Jan Muhammad alias Janoo, Shah Muhammad alias Shahoo, Sheikh Muhammad alias Sheikhs and Jamil accused, all armed with sticks, came there. Sheikhs accused raised a Lalkara that Chakra has come and that he should be killed. Idrees accused gave a stick blow to Chakra deceased who warded of the attack and caught Idrees accused. Chakra threw Idrees accused on the ground. At this, Sheikhs, Janoo, Shahoo, Zahoor,.Shane and Rashid etc. Accused started giving stick blows on the back and legs of Chakra. In the meanwhile, Idrees accused managed to free himself from the clasp of Chakra deceased. He took a knife from Shane accused, Thereafter, Shane and Zahoor caught the head of Chakra and Idrees accused chopped of both the ears of Chakra. Janoo and Sheikhs accused gave more injuries on the shoulders and arms of the deceased. Ghulam Muhammad and Jaafar P.Ws. Entreated the accused to save Chakra but with no effect. The accused after injuring Chakra left the spot with their respective weapons.
5. The motive was stated to be that about .One year earlier, there was some quarrel between two factions of Ahle Hadees and Barelvis in the village. Chakra deceased had helped the Barelvis and in that fight, Idrees accused and his mother were injured. They were being prosecuted in a case under section 325, P.P.C. On account of that occurrence. Chakra 45, deceased, when was still alive, was medically examined by Dr. Syed Shamshad Hussain P.W. 1, at Civil Hospital, Khanewal on 19-6- 1980, at 11.20 a.m. The Medical, Officer found that both right and left Pinnea (outer ears) had been completely. He also noted 20 blunt weapon injuries of various dimensions on the back of chest, outer part of right chest, lower part of right and left chest, lower back lumbar region, outer part of right renal area, whole of right buttock, right and left thighs and legs, left knee joint, back of right hand and back of right index finger. Injuries 1 and 2 had been caused by sharp-edged weapon while injuries 3 to 22 had been caused by blunt weapon. All the injuries were of 6 to 7 hours duration. Injuries 1 and 2 were of grievous nature while rest were kept under observation.
6. Chakra died in hospital on 19-6-1980, at 7-45 p.m.
7. The same Medical Officer on 20-6-1980, at 7.00 a.m., conducted post-mortem examination on the dead body of Chakra. On external examination, he found the same injuries as were noted by him during examination of Chakra when still alive. Injuries 1,2 and 17 were grievous. Injuries '4 and 6 were fatal. These are reproduced below:- (1)Right Pinna (outer ear) is cut totally from its base and an incised wound all around the ear hole present.
8. (2)Left Pinna (outer ear) was cut almost only upper part was present Incised wound present all around the ear hole.
9. (4)A reddish bruise 6" x 1" on back, middle and outer part of the right chest.
10. (6)A bruise 6" x 1" on back and lower, part of right chest.
11. (17)A lacerated wound 3/4" x 1/2" into bone deep on front and lower part inner aspect of right leg.
12. On dissection, the Medical Officer noted a fracture of tibia febula under injury No. 17. There were fractures of 3rd, 4th and 5th right ribs which further injured the right lung. Right side of chest was fell of blood. These fractures were the result of injuries 4 and 6 which were fatal. The chest wall was found bruised on back. The pleura and right lung had been injured under injuries 4 and 6.
13. Injuries 1 and 2 which had been caused by sharp-edged weapon and injury No. 17 by blunt weapon, were of grievous nature. Injuries 4 and 6 were fatal. Rest of the injuries were of simple nature.
14. The death was due to shock and haemorrhage resulting from injuries 4 and 6 by blunt weapon.
15. These two injuries were collectively as well as individually sufficient to cause death in the ordinary course of nature. The time between injuries and death was 14-15 hours whereas the post-mortem was conducted after about 12 hours of death.
3. The Investigation Officer A.S.I. Muhammad Asghar Khan on 19-6-1980, made an application Exh.
16. P.D. To the Medical Officer who, vide note Exh. P.D./1, opined that Chakra was fit to make statement though in a state of shock. The Investigating Officer recorded statement of Chakra Exh. P.D./2 under section 161 Cr.P.C. This was excluded by the trial Court from consideration as dying declaration.
17. The Investigating Officer made an application Exh. P.C. For getting the dying declaration of Chakra recorded by a Magistrate. After necessary formalities, Mr. Muhammad Tasneem, Magistrate reached Civil Hospital, Khenewal, on 19-6-1980, at 12.00 noon, vide note Exh. P.C./1. He asked the Medical Officer to give his opinion about the condition of Chakra. The Medical Officer, vide his note Exh. P.C./2 opined that Chakra was able to make statement. Thereafter, the Magistrate recorded statement Exh. P.K. At the instance of Chakra which was thumb-marked by him.
18. Muhammad Idrees accused was taken by his cousin to Dr. Shamshad Hussain P.W.1 on 19-6-1980 who medically examined him at 10-30 a.m. The Medical Officer found a contused wound --" x --" x scalp deep on the back and upper part of head a reddish bruise 2 --" x 2" on left side of neck at middle and a contusion mark -- " x -- on the back of right cheat upper part. These injuries had been caused by blunt weapon, were of simple nature and of 5 to 6 hours duration.
4. The accused were arrested on 23-6-1980. On that very day, Sheikh Muhammad accused led to the recovery of stick P. 5, vide memo. Exh. P.T., Shah Muhammad led to the recovery of stick P.6, vide memo. Exh. P.U., Jan Muhammad led to the recovery of stick P.7, vide memo. Exh. P.V. Zahoor Ahmed led to the recovery of stick P. 8, vide memo. Exh. P.X; Shane led to the recovery of Sots P. 9, vide memo. Exh. P.Y. Yaseen led to the recovery of Sots P. 10, vide memo. Exh. P.Z. Jamil led to the recovery of Soto P. 11, vide memo. Exh. P.A.A. Rashid led to the recovery of Sots P.12, vide memo. Exh.
19. P.B.B. And Idrees led to the recovery of blood-stained knife P.13 from his Baithak, vide memo. Exh.
20. P.C.C. All these memos were prepared by A.S.I. Muhammad Asghar Khan P.W. 13 and attested by Hakam P.W. 7 and Rashid P.W. (not examined). The knife P. 13 was found stained with human blood, vide report of Chemical Examiner Exh. P.F.F. And that of Serologist Exh. P.G.G.
21. Initially the case was registered under section 307/149/148, P.P.C. He offence was converted into 302, P.P.C., vide Roznamcha report Exh. P.O. He Investigating Officer took in possession attested copies of F.I.R., dated 6-6-1978, Exh. P.S. At the instance of Chakra deceased against Shah Muhammad and others; copy of F.I.R., dated 29-12-1978 Exh. P.R. At the instance of Muhammad Ismail against Sheikh Muhammad and others and copy of F.I.R., dated 6-5-1980 Exh. P.Q. At the instance of Sikandar (father of Shane accused) against Chakra deceased and others. He also took in possession copy of interim order, dated 19-6-1980 Exh. P.E.E. In criminal case State v. Allah Ditta, Chakra and others to show that on that date, Chakra deceased and Allah Ditta were absent when the case was called.
22. The accused were challaned after completion of the investigation.
5. The prosecution, in support of its case, examined 13 witnesses in all. Allah Ditta P.W. 9, Jaafar P.W.
23. 10, both brothers of Chakra deceased, and Ghulam Muhammad P.W. 11 were examined as eye--- witnesses. The recoveries of crime weapons from the accused were witnessed by Hakam P.W. 7.
24. The medical evidence was furnished by Dr. Syed 9hamshad Hussain P.M. 1 as given in detail above.
25. Raja Muhammad Tesneem, Magistrate recorded the dying declaration Exh. P.K. Of Chakra in the hospital. The statement of Chakra under section 161, Cr.P.C. Exh. P.B. Was recorded by A.S.I.
26. Muhammad Bashir P.W.
12. The case was investigated by A.S.I. Muhammad Asghar Khan P.W.13. The evidence of rest of the witnesses was of formal nature.
27. The accused when examined under section 342, Cr.P.C. Denied the charge and pleaded innocence.
28. They denied the recoveries of crime weapons at their instance. They did not produce any oral evidence in defence. Sheikh Muhammad accused, however, produced certified copy of interim order, dated 19-6-1980 Exh. D.F. And copy of order, dated 19-6-1980 Exh: D.G. In his defence.
29. The learned trial Judge came to the conclusion that the recoveries of sticks at the instance of the accused were of little importance and could not be considered as incriminating evidence against the accused:' He, however, accepted the recovery of knife P. 13 at the instance of Idrees accused. He placed reliance on the evidence of motive, dying declaration Exh. P.K. And the statements of the eye-witnesses and convicted the accused as stated above.
6. I have gone through the evidence on record with the assistance of learned counsel for the appellants. I have also heard the learned counsel appearing on behalf of the parties at length.
30. It was contended on behalf of the appellants that the parties were pitched in long standing enmity against each other and as such, no reliance could be placed on the evidence of the three eye- witnesses; that the dying declaration Exh. P.K. Should not be relied upon firstly, because it was a statement of an interested person and required corroboration and secondly, because it was not put to the accused during their examination under section 342, Cr.P.C.; that Yaseen and Jamil accused were not, in any way, involved in the previous litigation between the parties and that they were not specified any role in the F.I.R. Or in the statements of eye-witnesses during the trial; that recovery of knife P. 13 cannot be used as corroboration because at the time of occurrence, Idrees carried a stick and knife was with Shane accused; and that from the facts and circumstances of the case, the common object of the unlawful assembly of the accused could not be gathered.
31. Explaining the above contentions, it was argued by Mr. M.B. Zaman,, learned counsel appearing on behalf of the appellants, that the clash, no doubt, took place between the parties; that the complainant party was also armed and they inflicted injury to Idrees which was suppressed by the eye-witnesses which means that they were not telling the whole truth and as such, no reliance should be placed on their evidence. It was further argued that in the dying declaration Exh. P.K. Only Idrees had been attributed specific blow to Chakra deceased while other accused were given general part including Yaseen and Jamil accused who were not ascribed any part in the F.I.R. And as such, the prosecution evidence should not be relied upon without independent corroboration. It was argued that even if the prosecution' case is accepted, then Also the common object of the alleged unlawful assembly to cause intentional death of Chakra deceased could not be gathered because firstly, only two injuries 4 and 6 were found fatal; secondly, Shana accused though armed with knife, did not inflict any injury with knife to Chakra; thirdly, that Idrees also did not cause any injury on the vital part of Chakra with knife and instead cut the two ears only; and fourthly, that the facts and circumstances show that the common object of the accused was to give good beating of Chakra deceased who received two fatal and three grievous injuries on his person. It was, therefore, argued that at the most, a case under section 304 (II) or under 'section 325, P.P.C. Could be said to have been made out against the accused. Reliance for this was placed on a Supreme Court judgment in the case of Seraj Mia and 2 others v. The State 1969 P Cr. L J 1090. It was finally argued that three aged accused namely, Janoo, Shahoo and Sheikha were not present at the spot and that Yaseen and Jamil accused were ascribed no injury to the deceased and as such, they deserved clean acquittal.
32. The learned counsel appearing on behalf of Yaseen appellant adopted the arguments of learned counsel appearing on behalf of other appellants. He argued that Yaseen accused had no motive of his own and had been implicated in this case because he was a recovery witness against Chakra and his brothers in a criminal case.
33. The learned counsel for the complainant and the State controverted the contentions on behalf of the appellants. It was argued by the learned counsel for the complainant that the Medical Officer remained with the Magistrate when the dying declaration Exh. P. K. Was being recorded which contained all the details of occurrence including the names of the accused and the name of Jaafar P.W. Though Allah Ditta and Ghulam Muhammad were not mentioned in the said statement.
34. He relied upon a judgment of the Supreme Court reported as Muhammad Afzal v. Faqir and others PLD 1984 SC 375. He further argued that the case against the accused squarely came within the ambit of section 302/149, P.P.C. Because they gave a painful death to Chakra by cruel and merciless beating. He relied upon a judgment of the Supreme Court in the case of Fateh Khan v.
35. The State PLD 1963 SC 89.
7. A perusal of the three F.I.Rs. Exh. P.S., Exh. P.R. And Exh. P. Q: tendered in evidence by the prosecution and the F.I.R. Exh. D. A. Proved in evidence by the accused clearly indicate that the parties were pitched against each other in criminal litigation since at least two years before the present occurrence. The first case was registered vide F.I.R. Exh. P.S. On 6-6-1978, at the instance of Chakra son of Hap Murad (deceased of this case) under sections 148 and 149, P.P.C. Against Shaft Muhammad, Jan Muhammad sons of Ismail, Muhammad Rafiq and few others. Thereafter; another case was registered on 22-12-1978, vide F.I.R. Exh. D.A. Under sections 307/324/148, P.P.C. At the instance of one Noor Muhammad against Chakra deceased of this case and others. The third case was registered on 29-12-1978 at the instance of Muhammad Ismail against Sheikh Muhammad, Shah Muhammad, Jan Muhammad etc. Vide F.I.R. Exh. P.R. Under sections 307/325/148, P.P.C. For injuring. Chakra and others. The fourth case was registered on 6-5-1980, vide F.I.R. Exh. P.Q. At the instance of Sikandar (father of Shana accused) under sections 452/325, P.P.C. Against Chakra deceased of this case and some others. It is, therefore, clear that the parties were having strained relations between themselves. There is no suggestion that the complainant party of this case had other enemies as well. It was conceded by the learned counsel for the appellants that firstly, Idrees accused was injured during the occurrence and secondly, that the present fight took place a between the parties of this case, The accused had a motive Ito attack, the recent being the fight reported, B vide F.I.R. Exh. P.Q.
36. The prosecution case is that both the parties had to appear in criminal Courts at Khanewal on 19- 6-1980, i.e. The day of present occurrence. The interim orders Exh. P.E.E. In case State v. Allah Ditta etc. (complainant of this case) indicates that when .The case was called, Allah Ditta P.W. And Chakra deceased alongwith their co-accused Khan Muhammad were noted absent. Khan Muhammad was stated to be admitted in a hospital. Chakra, reported to have been injured, was taken away by Allah Ditta P.W. The interim order Exh. D.G., dated 19-6-1980 in case State v. Shah Muhammad etc. Indicate that Sheikh Muhammad, Shah Muhammad, Latif, Noor Muhammad and Sultan accused were marked present whereas the remaining accused were not present and ordered to be summoned for next date. It is, therefore, clear that Chakra deceased, Allah Ditta.
37. Jaafar and Ghulam Muhammad P.Ws. Who were all accused in the criminal case were proceeding to Khanewal to attend Court hearing. The occurrence took place when they had covered a distance of about three squares from their house on a public path. The accused knew that the complainant party would be proceeding to Khanewal and accordingly way-laid them at the time of occurrence. It was argued that the accused also had to attend Court fop hearing of a case at Khanewal on the day of occurrence and as such', there was no occasion for them to attack the complainant party. I am not impressed by this argument. Even if the accused had to attend Court hearing at Khanewal, there was nothing to forbid them to assault the complainant party. In my view, this was the most opportune moment for the accused party to way-lay Chakra and surprise him when the complainant party was proceeding to Khanewal empty-handed.
38. The prosecution case is supported by Allah Ditta P.W. 9, Jaafar P.W. 10 (both brothers of Chakra deceased) and Ghulam Muhammad C P.W. 11 who was not related to the deceased but was an accused with him in criminal case. It was argued that the witnesses were interested and inimical towards the accused; that there were discrepancies in their statements; that they made material improvements in their statements during the trial; and that they suppressed the injuries on the person of Idrees accused. It was, therefore, urged that they should not be relied upon without independent corroborating evidence. I have considered these contentions. As stated above, it is established on record of this case that the parties were inimical towards each other and were pitched against each other in criminal litigation. I have carefully gone through the statements of these three eye-witnesses. The discrepancies and improvements in their statements were not material. These discrepancies and improvements did not pertain to the actual occurrence but related mostly to the manner and the time of taking Chakra deceased from the place of occurrence to hospital. It was argued that Allah Ditta P.W. Should not have left Chakra deceased at the spot while going to the Police Station which indicates that he was not present at the place of occurrence. I find nothing wrong in the conduct of Allah Ditta P.W. He might have left Chakra at the spot thinking that by removing him from the place of occurrence, some evidence may not be tampered. Chakra was removed to the hospital before arrival of the police by some of his relatives who had reached the place of occurrence, after the occurrence from their house which was only about three squares away. Chakra deceased and the three eye-witnesses were accused in a criminal case which was fixed for 19-6-1980 which was the day of present occurrence. They were proceeding to the Courts at about 6.00 a.m. When the occurrence took place. The place of occurrence was about 11 Miles from Khanewal. It was, therefore, natural that they should proceed to Khanewal on cycles at about the time of occurrence. The F.I.R. Was lodged promptly at fi-30 a.m.
39. The eye-witnesses were natural. They made consistent statements during the trial. They cannot be disbelieved simply because of their previous enmity which in fact is a corroborating circumstance in their favour. I am not prepared to agree with the learned counsel for the appellants that the injuries on the person of Idrees accused have not been explained. According to the F.I.R. As well as the statements recorded during the trial. Idrees accused gave the first stick blow to Chakra deceased who warded of the blow and put a Japha around him. Idrees fell on the ground. A perusal of the evidence of Dr. Shamshad Hussain would show that Idrees accused received injuries on the back upper part of head, on in back of right chest and left side of neck at middle. These injuries clearly must have been received by Idrees accused when he fell down on the ground after he was put in Japha by Chakra deceased. The injuries on the person of Idrees accused, therefore, stood fully explained by the three eye-witnesses, who in the circumstances of this case were natural witnesses-of the occurrence. They have been fully corroborated by the evidence on motive.
40. The complainant party was being prosecuted for causing injuries to Idrees, the mother of Idrees and Sardar Muhammad. The accused, had motive to launch an attack on the complainant party.
41. It may here be stated that Sheikh, Muhammad, Shah Muhammad and Janoo accused are brothers and Gujjar by caste. Rashid and Idrees accused are sons of Bundoo and Arain by caste. Shane is a son of Sikandar, Yaseen is a son of Fateh Muhammad and Jamil is son of Baboo. A perusal of the four First Information Reports Exh. P.S., Exh. P.R., Exh. P.Q. And Exh. D.A. Clearly indicate that excepting Jamil and Yaseen accused, the remaining accused were having criminal litigation with complainant party. Jamil and Yaseen accused were not involved in the criminal litigation. Yaseen, as stated above, was only a recovery witness against Chakra deceased and others in one of the criminal cases. I am, therefore, of the view that the three eye-witnesses were present at the spot; they saw the occurrence and were truthful witnesses. The dying declaration Exh. P.K. Was recorded by Mr. G Muhammad Tasneem, Magistrate P.W.2 on 19-6-1980, at about 12.00 noon. The Medical Officer appended a note Exh. P.C.2 that Chakra was fit to make statement. Thereafter, the statement Exh. P.K. Was recorded. Mr. Muhammad Tasneem, Magistrate P.W. 2 in cross- examination stated that he also found Chakra fit to make statement. It was argued on behalf of the appellants that the dying declaration Exh. P.K. Should not be relied upon because firstly, the Medical Officer did not append any note after recording of the statement Exh. P.K. That Chakra remained in senses when the statement was being recorded; secondly, other persons were found present near Chakra when the Magistrate went to record the statement; thirdly, the statement Exh. P.K. Is only like a statement of a witness during the trial and as such, should not be relied upon without independent corroboration because Chakra was admittedly an enemy of the accused; and finally, that the statement Exh. P.K. Was not put to the accused, under section 342, Cr.P.C. I have considered these contentions and have also gone through various judgments cited at the Bar. It is correct that the Medical Officer recorded only one note before recording of the statement Exh. P.K.
42. There is no note after the recording of statement Exh. P.K. That Chakra throughout remained in senses. In my view, this omission is not material because firstly, the Magistrate himself stated during the trial that Chakra was in senses when the statement was recorded by him and secondly, it was only an omission which carries no weight i.e the facts and circumstances of this case. It was pointed out that the occurrence took place at 6.00 a.m. Whereafter Chakra was medically examined at 11.20 a.m. The Medical Officer found him in serious condition. The pulse at radius was absent. He was in shock and blood pressure was nil. It was, therefore, argued that he could not have been in senses after about 45 minutes when the dying declaration Exh. P.K. Wet recorded. It will be noted that Chakra deceased did not receive any injury on head. Only two injuries Nos. 4 and 6 were fatal and he died at about 7.45 p.m. On the day of occurrence i.e. After about 7/8 hours of the recording of the dying declaration. There is certificate Exh. P.C./2 by the Medical Officer that he was fit H to make statement before the Magistrate, who himself observed him to be fit to make statement. I, therefore, hold that Chakra made statement Exh.P.K. When in senses in the presence of the Medical Officer. The nature of injuries was not such which could prevent him from making a short statement like Exh. P.K. And as such, the said statement could be relied upon for recording conviction in this case. Reliance is placed on Muhammad Afzal v. Faqir and others PLD 1984 SC 375.
43. It was next argued that there were some other persons also present near Chakra when the Magistrate went to record statement. This fact was admitted by Mr. Muhammad Tasneem, Magistrate. It was, however, stated by him that those persons were removed from the premises when she went there to record the statement. I agree with the learned counsel for the appellants that the dying declaration Exh. P.K. Is to be treated like statement of any witness during the trial and requires corroboration. The statement Exh., P.K. Stands fully corroborated by the evidence on motive, medical evidence and also the three eye-witnesses. I have gone through the statements of the accused recorded under section 342, Cr.P.C. It is correct that the statement Exh. P.K. Was not specifically put to the accused as an incriminating evidence which could be relied upon to record conviction against them. The learned counsel for the appellants placed reliance in support of his contention on the judgment in the case of Faiz Muhammad and others v. The State 1984 P Cr. L J 1593. I have gone through this judgment. The dying declaration in the case of Faiz Muhammad was excluded from consideration because firstly, A.S.I. Riaz Ali Shah who had recorded the dying declaration, was not examined as witness during the trial as he had been declared a proclaimed offender in a Hudood case against him. Secondly, ho witness was examined to prove what was stated by the deceased. Thirdly, the defence did not have the chance to cross-examine Riaz Ali Shah. Fourthly, that there was a probability that the deceased while making the dying declaration was prompted by his brother Lal Shah and other eye-witnesses. Fifthly, that it was not clear if the deceased was fit to make statement and sixthly, that the said statement was not put to the appellants in their examination under section 342, Cr.P.C. And, therefore, could not be used as basis for their conviction. A perusal of this judgment would clearly show that the dying declaration was excluded from consideration for many cogent reasons. The observation that it cannot be used because it was not put to the accused while examining them under section 342, Cr.P.C. Was only a passing reference. The dying declaration was like a statement of a witness during trial. Whenever an accused is examined under section 342, Cr.P.C., general allegations regarding the occurrence are put to him. If there is other incriminating evidence like recoveries, absconsion, extra-judicial confession etc., then that incriminating evidence has to be put to the accused in that statement.
44. Dying declaration being only like statement of witnesses during the trial is not necessarily required to be put to an accused during his statement under section 342, Cr.P.C. I am, therefore, of the view that it was not necessary to put the dying declaration Exh. P. K. To the accused while examining them under section 342, Cr.P.C.; that the judgment in the case of Faiz Muhammad was not applicable to this case and that in any case, no prejudice has been caused to the accused for not putting the said statement to them when they were examined during the trial because the Medical Officer and the Magistrate who recorded the said statement, were examined as witnesses during the trial. They werecross-examined. The accused has full notice of the said statement being produced in evidence during the trial. It was argued that only Idrees accused had been attributed specific injury in the statement Exh. P.K. The other accused have been ascribed general attack on the deceased and as such, it could not be ascertained as to who caused fatal injury to the deceased. It was further argued that the deceased did not name Allah Ditta and Ghulam Muhammad P.Ws. As the eye-witnesses in Exh. P.K. In my view, the omission to name Allah Ditta and Ghulam Muhammad as witnesses was due to inadvertence and does not affect the merits of the case. The other argument that only Idrees had been attributed specific injury is of no effect because this is in line with the statements of the three eye-witnesses.
45. The prosecution evidence is supported by the recovery of blood j stained knife P. 13 at the instance of Idrees accused. According to prosecution case, this knife was with Shane accused who also had a stick in his hand. Idrees accused had taken this knife from Shane accused with which he cut both the ears of Chakra deceased. The recovery is supported by Hakam P.W. 7 and A.S.I. Muhammad Asghar Khan P.W.
13. Hakam P.W. Is, no doubt, interested witness but as held above; both the parties are inimical with each other. This fact alone is therefore, not enough to disbelieve Hakam P.W. The recovery is supported by A.S.I. Muhammad Ashgar Khan as well. I find no reason to disbelieve him even if the statement of Hakam P.W. Is excluded from consideration. The knife P. 13 yeas found stained with human blood and, therefore, furnishes corroboration to the three eye-witnesses and also to the dying declaration Exh. P.K.
46. The last contention on behalf of the appellants was that even if the facts of this case are admitted, then also no case under sections 302/149, P.P.C. Could be said to have been made out against the accused. Reliance for this was placed on the judgment in Seraj Mia's case. I have gone through this judgment. The facts in Seraj Mia's case were that Shames-ud-Din Ahmed was a friend of Seraj Mia accused. He was murdered by one Wasuddin who absconded after the murder. On receiving information that Wasuddin was hiding in the house of a relation, Seraj Mia accused sent Abdul Ali Defadar to arrest him. Wasuddin was accordingly arrested and under direction of Seraj Mia, brought to the office of Union Board. He was beaten by Nidhu and Masrab with the object of obtaining confession from him. Seraj Mia accused also joined in the assault. Wasuddin was then taken inside the office where he was again beaten by the accused. During that Wasuddin received injuries on the chest which fractured a rib, a portion of which pierced into the lung. He became unconscious. He was sent to the hospital but died. On these facts, Seraj Mia and his co-accused were convicted and sentenced under section 304(11), P.P.C. The petition for special leave to appeal was admitted to consider the applicability of section 34, P.P.C. In the circumstances of that case.
47. Lordships of the Supreme Court held that there was no doubt that in the circumstances, section 34, P.P.C. Was attracted because all three accused joined in the assault and administered a prolonged beating to the unfortunate man. It was not held by their Lordships, that in case-of prolonged beating the provisions of section 304 (11), P.P.C. Were only attracted and that the provisions of sections 302/149, P.P.C. Were not attracted. The judgment in the case of Seraj Mia was, therefore, not applicable to the facts of this case.
48. On the other hand, in my view, the judgment in Fateh Khan's case is applicable to the facts and circumstances of this case. In Fateh Khan's case, the accused were convicted under sections 148 and 302/149, P.P.C. For the murder of Fateh. Khan deceased. The Medical Officer found 52 injuries on the dead body, 13 of which were incised wound, 20 contusion marks, '5 contused wounds, 12 abrasions and 4 punctured wounds. Two of the injuries were found sufficient in ordinary course of nature to cause death which had punctured the spleen and fractured the ribs. In Fateh Khan's case, there were nine accused. It was held by their Lordships as follows:- "The case before us is one of merciless beating inflicted in pursuance of a plan. That the assailants intended to kill the deceased there can be no doubt although there is no injury by a spear or a hatchet on any vital part. The intention of the assailants in cases of merciless beating is not only to put an end to life but to inflict pain and to satisfy the lust for revenge by continuous beating. In such cases the fact that vital organs are deliberately avoided is not an extenuating circumstance and may even constitute an aggravating circumstance for vital organs are avoided the beating will be more prolonged.
49. While in the circumstances of a case the fact that a particular accused has not given the fatal blow or that his liability is only vicarious, may be a good ground for imposing the lesser penalty, in a case like the present where a number of persons inflict a large number of injuries with the intention of causing death so that each is contributing towards the death of the deceased, it is not necessary for the purpose of imposing the maximum penalty, to determine who gave the fatal blow. In such a case all those accused to whom the Court attributes the intention of causing death in a brutal manner should (in the absence of some other circumstance justifying the imposition of the lesser penalty) be awarded the maximum penalty it may be that in the case of a particular accused, although he too has caused some injury to the deceased the Court is not satisfied, having regard to all the circumstances that he shared such intention, but if it is so satisfied there is no need of proof of further facts in order to justify a sentence of death. In fact generally in cases of the kind with which we are dealing it will be difficult to determine who caused the fatal blow unless we were to rely on the statement of an interested witness who may have his own motive for attributing the fatal blow to a particular accused. If only those who inflicted the fatal injury are to be awarded the maximum penalty no one of the accused may in such cases be -liable to such penalty.'
50. However, I find that Yaseen and Jamil accused did' not have a direct motive to launch assault on Chakra deceased. They both were not involved in the previous criminal litigation between the parties as indicated in the four First Information Reports. They were not ascribed specific injuries to Chakra deceased in the F.I.R. As to other accused, p I, therefore, give benefit of doubt to Yaseen and Jamil accused. As a result of the above discussion the appeal of Yaseen and Jamil accused is accepted. Their convictions and sentences are set aside. They shall be released from prison forthwith, if not required in any other case. The appeal on behalf of Sheikh Muhammad alias Sheikha Shah Muhammad alias Shahoo, Jan Muhammad alias Janoo, Shan alias Shana, Rashid, Idrees and Zahoor is dismissed. Their convictions and sentences are maintained. If any of the accused /appellants are on bail, they shall surrender to the authorities concerned to serve their un expired sentence.