1. NASIM HASAN SHAH, J.--This appeal, by the leave of this Court, is directed against the judgment and order dated 22-12-1975 of the Lahore High Court, Lahore passed in Criminal Appeal No.917 of 1969.
2. This appeal has arisen in the following circumstances On 22-12-1975 a Division Bench of the Lahore High Court at Lahore while partly accepting the State appeal against the acquittal of the appellants herein convicted them under section 325/34 P.P.C. And 201/34, P.P.C. And sentenced them on both counts to seven years' R.I. Each and ordered that the sentences should run consecutively. The background of the facts resulting in the passing of these convictions and sentences was that on the morning of 18th November,1966, Chiragh Din, appellant No.1, was drawing water from a persian well known as Chah Bali Wala situated in the revenue estate of the Village Naul, Police Station. Pasrur, District Sialkot when Muhammad Amin P. W. (who is also a complainant) accompanied by his brother Bashir Ahmad came there and objected to Chiragh Din, appellant, from doing so on the ground that this was not his turn of drawing water. This led to an altercation and Chiragh Din appellant left the well in a rage and went towards the village.
3. Sometime thereafter Muhammad Amin P. W. And his brother Bashir Ahmad also proceeded towards the village for going to their house. On the way, as they were passing the Haveli of Chiragh Din appellant they found him (Chiragh Din) alongwith Muhammad Shafi, Muhammad Amin and Muhammad Din, variously armed, waiting for them. To escape from their clutches Muhammad Bashir ran into the Haveli of his uncle Ibrahim which was situated nearby. However, the assailants followed him there, entered the Haveli and started inflicting injuries on him and killed him on the spot. After having finished Muhammad Bashir deceased, Chiragh Din returned to his Haveli along with his companions carrying their weapons with them. He then thought of removing the evidence of his crime and exhorted Bashir, Rashid, Nazir and Latif, appellants Nos. 2 to 5, who had also come to his Haveli to go with him to Ibrahim's Haveli and help him to remove the dead body of Bashir deceased. Thereupon, appellants Nos. 2 to 5, variously armed, accompanied Chiragh Din appellant No. l to the Haveli. Bashir accused was armed with a Khunda, Nazir and Rashid with hatchets and Latif with a Barchhi. In the meanwhile, Muhammad Amin, complainant, P. W. 3, his mother Mst.
4. Hussain Bibi, P. W. 7, Allah Ditta, P. W. 6, Mst. Naziran P.W.8, sister of the deceased and another Mst.
5. Naziran Bibi wife of the deceased had all assembled in the Haveli of Ibrahim to mourn Bashir deceased and were gathered around his dead body. When the assailants entered the Haveli to remove the dead body of Bashir (deceased) they offered resistance. Whereupon appellants Nos. 2 to 5 caused injuries to them with their weapons but left the place without removing the dead body.
6. There were thus two separate incidents in this gruesome drama, one after .The other. Accordingly, two separate challans were submitted by the police; one for the murder of Bashir deceased, which was tried by the Sessions Judge, Sialkot, who acquitted all the accused, namely Chiragh Din, appellant No. 1, Muhammad Shafi, Muhammad Din and Muhammad Amin who were involved in this incident. The second challan related to the attempt to remove the dead body of the deceased and for causing injuries to the P. Ws. In this case, Chiragh Din, appellant No.1 and Bashir, Rashid, Nazir and Latif, appellants Nos. 2 to 5 herein were tried by the Additional Sessions Judge, Sialkot. They were also acquitted vide order dated 10-6-1969.
7. Two separate appeals were filed by the State against the two sets of the accused to challenge the orders in the two cases. A Division Bench of the High Court, after hearing both the appeals, however, dismissed the one filed by the State relating to the murder of Bashir deceased but accepted the State appeal against the present appellants, involved in the second case and convicted and sentenced them under section 325/34 and section 201/34, P.P.C. This appeal, by this Court's leave, is directed against the conviction and sentences of the appellants under section 325/34 and section 201/34 P.P.C.
8. We have heard the learned counsel for the appellants as well as of the State counsel.
9. There is an obvious error in the decision of the High Court. So far as its order of conviction of the appellants under section 201/34, P.P.C. Is concerned, it will be recalled that the dead body of Bashir deceased could not be removed on account of resistance offered by the injured P. Ws.
10. Consequently, the conviction of the appellants under section 201/34, P.P.C. Is unwarranted and the appellants could only have been convicted for an attempt to cause disappearance of the evidence under section 201, P.P.C. Thus, the appeal of the appellants against their conviction and sentence under section 201/34, P.P.C. Passed by the High Court must be set aside. However, we are satisfied that the appellants except, perhaps Latif, appellant No.5, were clearly amongst the persons who had gone to the Haveli of Ibrahim to remove the dead body of the deceased and to cause disappearance of the evidence in relation thereto. Hence appellants Nos. 1 to 4 can safely be convicted under section 201/511, P.P.C. Read with section 34, P.P.C.
11. The reason why we think that Latif, appellant No.5, is entitled to the benefit of the doubt is because he allegedly caused injuries with his spear to Allah Ditta on his left hand and also to Mst. Naziran.
12. The injuries suffered by them, according to Dr. Shakur Elahi, P. W. 1, were the following:- Allah Ditta P. W. 6
(1) One incised wound 3/4" x 1/8" skin deep on the proximal phalanx of left index finger.
(2) One incised wound 1/2"x 1/8" skin deep on the palm.
(3) One abrasion 1/8" x 1/8" on the back of proximal phalanx ofleft thumb.
13. All the injuries were simple. Injuries Nos. 1 and 2 were caused with a sharp-edged weapon while Injury No.3 was with a blunt weapon.
14. While those suffered by Mst. Naziran were these:- Mst. Naziran P. W. 8
(1) One incised wound 1/2" x 1/4" on the back of left ring finger proximal phalanx with swelling.
(2) One swelling on the inner part of left hand dorsal aspect.
(3) One swelling 3" x 2" on the occipital region in the middle.
(4) Complaining of pain in the back of, chest.
(5) One swelling 1/2" x 1/2" on the medial side of right wrist joint.
15. According to Dr. Shakur Elahi, P. W. 1, all the injuries were simple. Injury No. 1 was caused by a sharp edged weapon while the rest were with blunt weapon.
16. A close scrutiny of the injuries shows that the injuries suffered by both these P. Ws. Could not have been caused by a spear.
17. The learned Judges of the High Court, however, were of the view that the injuries suffered by Allah Ditta P. W. Showed that such like wounds could be received by a person who was in the process of warding off the blows being inflicted upon him by his assailants. But we feel that in such a case the injuries should have been on both sides of the palm of the hand of this witness which is not the case. The injuries caused to Mst. Naziran Bibi P.W. Also do not appear to have been inflicted by a spear. We, therefore, consider that Latif, appellant No. 5, is entitled to the benefit of doubt.
18. So far as the remaining four appellants are concerned, we are in full agreement with the High Court that they had gone to the Haveli, of Ibrahim and tried to remove the dead body of the deceased and!, caused injuries to the P. Ws. And while causing injuries to them had, not even spared a woman and had cut off the ear of Mst. Hussain Bibi, P. W. 7, from its root. Their conviction under section 325 read with section 34, P.P.C. Is fully justified and so also the sentence of seven years' R. I.
19. Imposed on them. However, we consider that the sentence awarded under section 325/34, P.P.C.
20. And the sentence under section 201/511 read with section 34, P.P.C. Should run concurrently and not consecutively.
21. The not result is that Latif, appellant No.5, is acquitted. The conviction of the appellants Nos. 1 to 4 namely, Chiragh Din, Bashir, Rashid and Nazir under section 325/34, P.P.C. As also the sentence of seven years' R. I. Each is upheld. They are also convicted under section 201/511 read with section 34, P.P.C. And sentenced to 31 years R.I. Each. Both the sentences shall run concurrently and they will also be given the benefit of the provisions of section 382-B, Cr. P. C.I in computing the sentences, they have yet to undergo. Accordingly, respondents Nos.1 to 4 will be taken into custody in order to serve out their outstanding sentences. The appellant Latif shall be set a liberty forthwith unless required in some other Case.
22. This appeal partly succeeds and is disposed of in the above terms