' This is an appeal by Ali 32, Ahmad Yar 32, Riaz 25, Abbas 18, Mirja 30 and Natu 20 against their conviction vide judgment, dated 5-6-1984 by learned Additional Sessions Judge, Sargodha. They all were sentenced to three years' R.I. Under section 148, P.P.C. And to 10 years' R.I. Under section 304/149, P.P.C. Both the sentences were ordered to run concurrently.
' We Muhammad complainant filed Criminal Revision No, 522 of 1984 with a prayer that "the sentences of the accused be enhanced to the maximum punishment provided by sections 302/149, 148, P.P.C. This revision was not admitted and only directed to be heard alongwith connected appeal.
' Both the above matters being directed against one judgment will be disposed of together.
2. The occurrence in this case took place at Peshiwela on 20-4-1983 at the dera of Allah Yar in Chak No, 61 Shatnali, about 18 K.M., from police station Sadar Sargodha. The formal F .1.R. Was recorded by P.W.1. Muhammad Azam on 20-4-1983 at 6-15 p.m. On the basis of the complaint Exh. P. C.
Recorded on the same day at 5-15 p.m. At Lakmorr by A .S.I. Amir Akbar P.W .10 at the instance of Wali Muhammad P . W .5
3. Wali Muhammad complainant stated in his first information report that Allah Yar was a brother of his wife. He lived in Chak No, 53 but had taken up residence in Sakesar. He had his dera in Chak No,61 Shamali. He further stated that on 20-4-1983 at Peshiwela he alongwith his nephew Ghulam P.W. Went to Sakesar to meet Allah Yar. There they learnt that he was at his dera. They accordingly went to that side. When they were about one Killa away from the Dera of Allah Yar they found him lying on a cot in front of his Dera. In the meantime Ali armed with Barchha, Mirja, Abbas, Ahmad Yar, Riaz and Natha armed with sticks came from the side of the Dera of Ali accused. Ali challenged on hearing which Allah Yar deceased tried to get up from the cot. All gave a Barchha blow which fell on the right leg of Allah Yar. Mirja and Riaz accused gave stick blows, respectively on the right and left biscept of Allah Yar. Ahmad Yar also gave a stick blow on the left arm of Allah Yar who fell down.
Natu and Riaz accused gave stick blows on the left leg of the deceased. Thereafter all the accused gave repeated blows to Allah Yar. The alarm attracted Allah Yar son of Salehoon P.W. As well. The accused then left the spot with their respective weapons. Allah Yar went unconscious. He was placed on a cot but died shortly thereafter on account of the injuries.
' The motive was stated to be that Ali accused was married to Mst. Jallan. She could not live a happy life and got a decree for dissolution of her marriage from Court. Allah Yar deceased wanted to marry Mst. Jallan which fact annoyed the accused.
' Wali Muhammad complainant, leaving the dead body at the spot in the care of Ghulam and Allah Yar Baloch P.Ws. Proceeded to the police station to lodge the report. He met A.S.I. Amir Akbar at Lakmorr who recorded his statement Exh. P.C.
4. The dead body of Allah Yar was sent for post-mortem examination which was conducted on 21- 4-1983 at 10 a.m. By P.W.7 Dr. Muhammad Saeed who found 9 injuries on the dead body. Injury No,9 was "incised wound muscle deep on the outer side of the right leg". The remaining 8 injuries had been caused by blunt weapon. Injury No,2 was noted as "three lacerated wounds 1 c.m. x c.m. each on outer side of right upper arm. The underlying bone was fractured". Injury No,4 was "a lacerated wound 1 c.m. x I c.m. On the outer side of left upper arm with fracture of underlying bone".
Under injury No,5 it was noted that "left forearm was fractured". Injury No,6 was "a lacerated wound 2 c.m. x 1 c.m. On the left leg middle part with fracture of underlying bones". Injury No,8 indicated "two lacerated wounds 2 c.m. x c.m. Each alongwith three lacerated wounds 2 c.m. x 1 c.m. Each on the upper and outer side of right leg which was swollen and had fracture of the fibula lower end."
Injuries 2, 4, 5, 6 and 8 were grievous while the remaining injuries were of simple nature. The death had occurred due to shock and haemorrhage caused by injuries 2, 4 to 6 and 8 which were sufficient in the ordinary course of nature to cause death. The probable duration between injuries and death was about one hour and post-mortem was conducted after about 18 hours of the death.
5. The Investigating Officer during inspection of the spot collected blood-stained earth from the place of occurrence vide memo Exh. P.D.
' The appellants were arrested on 22-4-1983.
' On 1-5-1983 Ali accused while in Police custody led to the recovery of blood-stained Barchah P.4 which was taken in possession by A.S.I. Amir Akbar P.W. 10 vide memo. Exh. P.E. In presence of Allah Yar P.W.6 and Bati P.W.9.
' On the same day in presence of the same witnesses Ahmad Yar accused led to the recovery of blood-stained Sota P.5 vide memo. Exh. P.F.
' On the same day in presence of the same witnesses Riaz accused led to the recovery of blood- stained Sota P.6 vide memo. Exh. P.G. These crime weapons were found stained with human blood vide report of the Chemical Examiner Exh. P.M. And that of Serologist Exh. P.N.
' No incriminating article was recovered from the remaining three accused.
' The accused were challaned after completion of investigation.
6. The prosecution during the trial examined ten witnesses in support of its case. P.W.5 Wali Muhammad and P.W.6 Allah-Yar Baloch were examined as eye-witnesses. Ghulam another eye- witness named in F.I.R. Was given up as having been won over by the accused. The recoveries of crime weapons P.4 to P.6 were witnessed by Allah Yar P.W.6 and Bati P.W.9. The medical evidence was furnished by P.W.7 Dr. Muhammad Saeed as given in detail above. The case was investigated by A.S.I. Amir Akbar P.W.10. The evidence of the rest of the witnesses was of formal nature.
' The accused when examined under section 342, Cr.P.C. Denied the charge and pleaded innocence. They denied their presence at the spot at the time of occurrence and attributed this case against them at the instance of Mehr Khudadad son of Mutalam. They did not produce any evidence in defence.
' The learned trial Judge placed reliance on the eye-witnesses, recoveries of crime weapons and evidence on motive and convicted the appellants as stated above.
7. I have heard the learned counsel appearing for the parties and have carefully gone through the record of this case.
' It was contended on behalf of the appellants that the F.I.R. In this case was recorded after preliminary investigation and thereafter the case against the appellants was fabricated. Secondly, that the recoveries of crime weapons could not furnish a corroborating evidence against the accused because these were sent for Chemical analysis after 30 days of recoveries. Thirdly, that three accused namely Abbas, Mirja and Natu were found innocent by the Police and not challaned and fourthly, that the eye-witnesses being interested were not reliable specially because of their conduct that they did not accompany the dead body to the mortuary for identification. The learned counsel for the State and complainant have controverted these contentions,
8. The occurrence in this case took place at about Peshiwela and the statement Exh. P.C. Was recorded at Lakmorr at about 5-15 P.M. On the same day. The police station was about 18 K.M. From the place of occurrence. There does not appear any delay in lodgin of the F.I.R. The argument of learned counsel was that the simple fact that the F.I.R. Was not recorded at the police station but at place near the place of occurrence indicates that it was recorded after some preliminary enquiries at the place of occurrence. I am not prepared to agree with the learned counsel to conclude that any preliminary enquiry was held by the investigating officer before recording the statement Exh.
P.C. Secondly, if some enquiry had been held the three alleged innocent accused would not have been named in the F.I.R. The inclusion of the names of Abbas, Mirja and Natu accused clearly shows that the statement Exh. P.C. Was recorded at the instance of. Wall Muhammad P.W.5 without any preliminary enquiries.
The recoveries of the three crime weapons were witnessed by P.W. 6 Allah Yar Baloch and P. W.9 Bati. These two recovery witnesses are not related to the deceased. They have no enmity with the accused to falsely implicate them in this case. On perusal of their statements I find that they had made consistent statement during the trial to support the prosecution case. I find no reason to disbelieve them. It is correct that the three crime weapons which were recovered on 1-5-1983 were received by the Chemical Examiner on 30-5-1983 but this fact does not mean that the recoveries cannot furnish corroborating evidence in this case. It was argued by the learned counsel that the blood must have disintegrated during these 30 day and as such no reliance can be placed on the report of Serologist Exh. P.N. This argument has no force because these crime weapon did not remain lying buried in earth on account of which the blood could disintegrate. After recoveries, these weapons were sealed in parcels, Which were found intact by the Chemical Examiner. In my view the blood could not have disintegrated after the weapons were sealed in parcel., Secondly, the Chemical Examiner or the Serologist did not state in their reports that the blood had disintegrated or that for that reason no opinion could be given. The blood was not found disintegrated by them. In view of this I do not find any force in the contention of learned counsel for the appellants.
The prosecution case is supported. By P.W.5 Wali Muhammad and P.W.6 Allah Yar. These two eye- witnesses had no-direct enmity with the accused to falsely implicate them in this case. Wali Muhammad P.W. Is resident of Chak No, 53 S.B. About 50 miles from the plat of occurrence but he has given a reasonable explanation of his presence at the time of occurrence. The F.I.R. Was recorded on his statemen C Exh. P.C. Which was recorded after a short while of the occurrence. If Wali Muhammad P.W. Had not witnessed the occurrence it woul not have been possible for Police to summon him from his house in such a short period and then record his statement at 5-15 P.M.
On the day of occurrence. Allah Yar Baloch P.W. Is resident of village Sakesar which was only one mile away from the place of occurrence. He was going to bring milk from the dera in Chak No,61 N.B. At that time Ghulam and. Wali Muhammad P.Ws were going ahead of him when he reached near the dera of Allah Yar deceased, he saw the occurrence. Allah Yar P.W.6 is not related to the deceased. He has no enmity with the accused. Both these eye-witnesses were not effectively cross-examined during the trial. I do not find any thing in their statements to disbelieve them. Both of them were independent witnesses. It was argued that the two eye-witnesses were not present when the inquest report was recorded nor did they accompany the dead body for post-mortem examination and as such it can be reasonably inferred that they were not present before the occurrence or at theD time of occurrence or at the time when the Police arrived at thspot. This argument is without any basis. As held above, the F.I.R. Was recorded without any delay. Mere fact that these witnesses were not mentioned in the inquest report or that they did not accompany the dead body to the mortuary would not mean that they were not present at the spot at the time of occurrence or that they were false witnesses. One can imagine many reasons for omission of the Investigating Officer to mention their names in the inquest report. I am clear in my mind that these two witnesses were present at the spot and that they witnessed the occurrence.
It was vehemently argued by the learned counsel for the appellants that Abbas, Mirja and Natu accused were found innocent by the Police and as such they deserve acquittal. I have considered this argument. These three accused were distantly connected with Ali accused. They did not have direct motive to join their co-accused in the commission of this offence. No crime weapons or other incriminating articles were recovered at their instance. They pleaded innocence at the very first opportunity before the police. They examined many witnesses in their defence during investigation. The case was investigated by more than one Police officer. They al consistently found them innocent.
9. In view of above discussion I find no merit in this appeal on behalf of Ali, Ahmad Yar and Riaz accused which is accordingly dismissed. This appeal on behalf of Abbas, Mirja and Natu accused is accepted. Their conviction and sentences are set aside. They are acquitted of all the charges in this case. They shall be set at liberty forthwith if not required in any other case.
10. In view of the above decision the conviction of Ali, Ahmad Yar and Riaz accused-appellants under section 148, P.P.C. Is set aside. These three appellants are sentenced to 10 years' R.I. Under section 304/34, P.P.C. They will be allowed benefit of section 382-B, Cr.P.C.
11. In view of the above decision in appeal Criminal Revision No,522 of 1984 is dismissed in limine.