1. SALAHUDDIN AHMED, J.-This appeal is by special leave of this Court and is from the order of a Division Bench of the Lahore High Court maintaining the conviction and confirming the sentences of death passed on the appellants under section 302 read with 34, P. P. C. By the Additional Sessions Judge, Lyallpur, for having committed the murder of Ghulam Rasul, The High Court also maintained the conviction and sentence off appellant Muhammad Sharif under section 379 of the Codes.
2. The appellants are brothers and are resident of Chak No. 142/R. B. The occurrence took place on the 4th of February 1969, at Dopeharwela in Chak No. 132/R. B., within the jurisdiction of P. S. Chak Jhumra, District Lyallpur, situated at a distance of 10 miles from the place of occurrence.
3. The prosecution case is that on the 4th of February 1969, Registration Officer came to Chak No. 132/R. B., to register and dispose of objections to the enlistment of voters in the matter of Union Council No. 163 of which this Chak and the appellants' Chak are component. The appellants claimed that the vote of Mst. Sharifan Bibi should be registered in Chak No. 142/R. B., while Ghulam Rasul, deceased, objected to it on the ground that she was a resident of village Sodhra, near Wazirabad where she lived with her husband. A controversy over this objection arose between the deceased on one side and the two appellants and their five companions, namely, Siddiq, Akbar, Sharif, Chiragh Din and Maqbool on the other. The controversy was followed by alter--ations and abuses and grappling. The persons present on the occasion including P. W. Hidayatullah intervened and separated the parties. In doing so Hidayatullah received some injuries. The gun of Ghulam Rasul deceased, was at the time lying on the cot on which he was sitting. Appellant Ahmad Din picked up the gun, and with its butt struck on the head of the deceased. The appellant also gave a lalkara and it was followed by appellant Muhammad Sharif firing from a gun and hitting Ghulam Rasul on his back between his shoulders. The assailants and their companions then left the place with the guns including the gun of the deceased. The occurrence was witnessed by P.Ws.
4. Muhammad Abdullah, Hidayat Ullah, Sher Muhammad, Inayatullah and Sultan Ahmad.
5. The motive alleged by the prosecution is that Ghulam Rasul deceased had illicit relations with Khurshid Bibi, wife of Siddiq, a relation of the aforesaid Chiragh Din, a companion of the appellants.
6. Ghulam Rasul, deceased, had got the marriage of Khurshid Bibi dissolved and then married her 2/4 months prior to the occurrence.
7. P. W. 6 Muhammad Abdullab, brother of the deceased went to Police Post Aruri, at a distance of one mile from the place of occurrence and reported the occurrence which was recorded by an Assistant Sub-Inspector of Police, Malik Ahmad Khan, P. W. 14 at 12-30 p. m. This report was subsequently sent to Police Station Chak Jhumra, which is 10 miles away from the place of occurrence, and it was recorded on the same day at 3-30 p.m. The usual preliminary investigation followed in course of which blood-stained earth from the spot was seized.
8. Muhammad Sharif was arrested on the 5th of February 1969. Appellant Ahmad Din was arrested on the 24th of February 1969, and produced a gun P. 8 which was duly seized. On the 28th of February 1969, Police Constable Muhammad Zafarullah produced before the Investigation Officer the licence of the gun of appellant Ahmad Din and it was duly seized.
9. The Investigating Officer submitted challans against the appellants under sections 302/34 and 379/34 and challan against the five aforesaid companions of the appellants under section 147 of the Code. The Medical Officer, Civil Hospital, Chak Jhumra, Dr. Shamim Ahmad Khan performed the post-mortem examination on the deceased, and found the following injuries:-
(1) A gunshot wound on the back of left shoulder with tattooing marks not well marked 3-- x 1----- x -----. One piece of cork was found in the wound.
(2) Five bullets perforations on the left side of the back of neck with tattooing marks.
(3) Round gunshot wound on the left side of the back of the skull on the occipital bone with prolapse of brain matter 1--' x 1" in the brain matter.
(4) An abrasion on the back of the spinal colic at the lumber region ----- x ----- thrice in number.
10. Brain matter was prolapsing out of the wound. On dissection seven bullet pieces were found in the brain mainly in the mid brain and hind brain. Pieces of five bones were found in the brain. Brain was badly damaged. The membranes were damaged and destroyed.
11. In the opinion of the doctor the cause of death was injury to the brain matter with a gunshot wound which was sufficient to cause death in the ordinary course of nature.
12. It may be mentioned here that this doctor was not available for examination either at the committing stage or at the trial, and his statement was, therefore, proved by P. W. 1 Hassan Muhammad, Dispenser, who claimed to be fully conversant with the handwriting of the doctor and proved the medico-legal report Exh. P. 11 prepared by the Doctor.
13. The appellants pleaded not guilty to the charges framed against them. Appellant Ahmad Din denied his presence at the spot and stated that he was falsely implicated due to enmity with P. W.
14. Sher Muhammad, as a result of political rivalry. He also stated that they had enmity with P. W.
15. Hidayatullah inasmuch as appellant Muhammad Sharif, who had married the sister of the wife of P.
16. W. Hidayatullah had divorced her, and Muhammad Sharif had taken another wife. Appellant Muhammad Sharif admitted his presence at the spot on the day of occurrence in connection with the objection relating to the votes of his Chak. He said that appellant Ahmad Din was not present there. Muhammad Sharif also stated that Shafi and Chiragh Din (the two companions of the appellants) were present on the occasion but he did not see the other three companions, Maqbul, Akbar and Siddique. Muhammad Sharif also admitted the presence of Ghulam Rasul deceased and P.W. Sher Muhammad at the spot on that day but said that the latter had left before the actual occur--rence. This appellant admitted altercation between the deceased and one Muhammad Shafi over the objection by the deceased to the vote of Msr Sharifan Bibi. He said, there was another quarrel over the same matter in course of which the deceased abused Muhammad Shafi and they grappled with each other. Muhammad Sharif proceeded to state that out of the 200/150 persons of the Chak present on the occasion, 4/5 persons had guns with them, and 2/3 shots were fired from the guns. One of the shots bit Ghulam Rasul deceased, and he died. The appellant said that he was falsely implicated due to enmity with the prosecution witnesses as explained by his brother Ahmad Din. Three Defence Witnesses Muhammad Sadiq, Muhammad Nawaz and Abdur Rehman were examined in support of the defence case and-also a copy of the Khasra Girdawari (Exh. P. F), and a certified copy of the marriage register (Exh. D. C) and some copies claimed to contain the state-- ments of Ghulam Rasul deceased, were tendered by the appellants.
17. The learned Additional Sessions Judge found the appellants guilty of the charges framed against them and he accordingly convicted and sentenced them. The High Court subsequently maintained the conviction and sentences and confirmed the death sentences as stated already.
18. Mr. Manzoor Qadir, learned counsel appearing on behalf of the appellants, has contended that the witnesses to the occurrence are related to or connected with the deceased and, therefore, their evidence should not have been accepted without corroboration. He submitted that no corroboration from any independent source has been furnished to ensure that these interested witnesses spoke the truth.
19. It is true that P. W. Muhammad Abdullah, Hidayatullah and Inayatullah are related to the deceased; the first is the brother of the deceased, the second is the brother-in-law of a brother of the deceased, and the third witness is married to a sister of the wife of the deceased. P. W. Sultan Ahmad had one time cultivated the land of the deceased but he said he left it a month before the occurrence. P. W. 10 Sher Muhammad is a B. D. Member from Chak No. 142/R. B. And he does not appear to be related to either party. His presence at the place of occurrence has been admitted by appellant Muhammad Sharif, with this difference that although the prosecution witnesses said that he continued to be present throughout the occurrence and saw the occurrence, Muhammad Shard said that the witnesses had left the place of occurrence after the altercation but before shooting had started. P. W. Sher Muhammad has proved the presence of P. Ws. Hidayatullah, Abdullah, Sultan and Inayatullah at the time of occurrence. His evidence on this point has remained unchallenged. The witness has also denied that he had left the spot as soon as Siddiq and Akbar grappled with Ghulam Rasul deceased. P. W. Sher Muhammad is apparently a respectable and independent witness and there is no reason to disbelieve him. The prosecution witnesses including P. W. Sher Muhammad have been believed by the learned Additional Sessions Judge as well as by the learned Judges of the High Court, and there is no reason to disagree with their acceptance of the evidence of these witnesses.
20. We now proceed to examine the case of the individual appellants. As regards the appellant Muhammad Sharif, we fully agree with the conclusions arrived at by the trial Court as well as the High Court in regard to his guilt and we think that his conviction has been rightly maintained by the High Court.
21. As regards his sentence, however, it appears from the evidence that the deceased had apparently no interest to object to the inclusion of Mst. Sharifan's vote in respect of Chak No. 143/R. B. He seems to have acted as a busy body and objected to such inclusion even though he was warned not to do so by Muhammad Sharif. By all indications the occurrence was the result of a sudden quarrel which unexpectedly developed between the parties on account of the unexpected objection raised by the deceased. Although there was an altercation followed by abuses and grappling, the parties were separated and the quarrel appeared to have ended. It is apparent that thereafter, at the insistence of the deceased to object to the inclusion of the vote of Mat. Sharifan Bibi, trouble again rose between the parties, and Muhammad Sharif shot at Ghulam Rasul deceased only once. If this was an act of premeditation, one would have expected that in view of the heat generated between the parties, Muhammad Sharif would have not rested content with only one shot and would have repeated his firing. This was, however, not done. We accordingly hold that in the facts and the circumstances of the case, the lesser sentence of imprisonment for life will meet the ends of justice.
22. As regards appellant Ahmad Din, however, we think he is entitled to the benefit of doubt. Although it is the consistent evidence of the prosecution witnesses that he had first hit the deceased on his head with the butt of the gun of the deceased, the medical evidence does not disclose any injury with a blunt substance on the head of the deceased. It may have been noticed that the medico- legal report shows only gun shot wounds on the head. If Ahmad Din had acted with preconcert to kill Ghulam Rasul, it is difficult to understand why instead of shooting at the deceased, he would rest content with giving a blow with the butt of a gun, which left no trace whatsoever upon the head of the deceased.
23. Ahmad Din is the younger brother of appellant Muhammad Sharif and having regard to the fact that. Medico-legal report do not support his complicity in the crime, and the fact that the other companions of the appellants have since been acquitted, although they too were implicated by the prosecution witnesses, it appears not unlikely that Ahmad Din was falsely roped in. Three defence witnesses have been examined and they all say that Ahmad Din was not present at the occurrence. Ahmad Din himself has stated in course of his examination that he was not present. It is true that the evidence of the defence witnesses does not inspire confidence but having regard to the other circumstances mentioned already, we think it safe to give him the benefit of doubt and we accordingly do so. We, therefore, hold that the prosecution has failed to prove its case against the appellant Ahmad Din beyond any reasonable doubt.
24. In the result the appeal of Muhammad Sharif is dismissed with the modification that the sentence of death passed on him is commuted to that of transportation for life. The appeal of Ahmad Din is allowed. His conviction and sentence are set aside and he is directed to be set as liberty forthwith if not required in connection with any other matter.