MUHAMMAD At---7,AL CBBBMA, J.--This is ail appeal on behalf of twelve appellants (names noted in. The margin) (1) Mian Khan son of Rehmat, (2) Sultan son of Ahmad, (3) Mohabbat son of Ghulam Rasul, (4) Sharif alias Khanu son of Nawab Din, Ghafoor son of Nawab, (6) Yusuf son of Hassan, (7) Muzaffar as Zatfar son of Nawab, (8) Barkat Ali son of Ghulam Rasul, Riaz son of Ahmad Ali, (10) Ashiq alias Hashu son of Ahmad.Muhammad Din son of Hassan and (12) Rashid son of Maula Bakhsh, who were all sentenced to death under section 302/149, 'P. C. In addition to a sentence of one year's R.I. Each under sea-- on 148, P. P.C. And seven years' R. I. Each under section 307/149, P. C. The conviction was recorded in a triple murder case the learned Additional Sessions Judge, Multan, vide the impugned judgment dated the 31st of January 1970. The case also before us under section 374, Cr. P. C. For the confirma--tion of the death sentences of the appellants.
Besides, there a revision petition (Criminal Revision No. 696 of 1970) by one Mr. Mahmood Akhtar Ghumman, an Advocate of Vihari, and Muhammad Anwar P. W. 14 praying for the enhancement of the sentences awarded to the appellants under section 307/149,P. P. C, to those of transportation for life, and for the award of adequate compensation to them and the heirs of the three deceased under section 544-A, Cr. P. C. This judgment will dispose of the appeals the Murder Reference and the revision petition.
2. The case for the prosecution, as revealed in the initial report Exh. P. K., lodged by Nur Muhammad who died before the trial, is that on the 10th of July 1967, a village fair was held near the shrine of Pir Punnu in Chak No., 222/E.B. Close to the village abadi. At about 6 p.m., a kabaddi match was being played when the 12 appellants, accompanied by Qaim Din, who also died at the spot, came there.
Barkat Ali appellant was armed with a pistol, Yusuf, Muzaflar, Ashiq and Qaim Din, deceased- assailant, wielded sticks, Riaz, Muhammad Din, and Rashid carried hatchets while the rest had spears. Apprehending danger, Muhammad Anwar P. W. 14 and the three deceased, namely, Muhammad Ashraf, Shera and Rehmat Ullah, of whom Shera was a tenant and Rehmat Ullah, a servant of Muhammad Ashraf, left the place and started towards the village abadi. The assailants challenged them sarcastically saying that they were going to transfer the land in their favour just then. They followed them overtaking Muhammad Anwar, who was the first target, at distance of 3/4 killas. Having felled him they rushed forward and encircled the three deceased at a distance of about a killa and a half from the village abadi of Chak No. 222-E.B. And were then attacked.
Ghafoor, Sharif, Riaz and Hashu appellants concentrated on Shera deceased while Sultan, Mi" Khan, Rashid, Yusuf and Qaim, deceased-assailant, attacked Muhammad Ashraf deceased. Rehmat deceased was attacked by Mohabbat, Muhammad Din and Zafar. Barkat appellant fired with his pistol. Having received some injuries, Muhammad Ashraf fired with his gun in self-defence, but was floored by a spear blow given to him by Sultan who snatched his gun. Of the assailants, Mian Khan, Ashiq, Muhammad Din and Rashid were injured, while Qaim died of a gunshot injury at the spot.
Mst. Khurshid Bibi, wife of Sultan appellant also reached the spot and received injuries.
Muhammad Ashraf, Shera and Rehmat succumbed to their injuries at the spot.
The motive alleged in, the initial report and later deposed to at the trial which appears to be rather remote and involved was that one Sultan son of Hayat, Gujjar by Caste, resident of Chak No. 222/E.B. Was a cripple. Eight or nine years prior to the occurrence, his wife Mst. Nazran was abducted by Sultan appellant who later passed her on to his brother Fazal with whom she lived as his wife and gave birth to two children. About a year prior to the occurrence, Fazal succeeded in coercing Sultan cripple to divorce Mst. Nazran. Sultan held some landed property which he apprehended, would be mutated after his death in the name of the two illegitimate sons boar to his wife from Fazal and fathered upon him. In order to safeguard against such an eventuality he appointed Bahadur son of Muhammad Din,. Gujjar of his village, as his attorney. The latter, in turn, leased out the land to his brother Muhammad and Mohammad Ashraf deceased, who was a resident of Chak No. 186-E.B. The lessee tools possession of the land and started cultivating the same. Sultan appellant having been frustrated in his designs and having also last possession of the land was on the look out tea take revenge and accordingly having the support of other accused availed of this opportunity.
3. Of the appellants, Barkat and Mobabbat are brothers, Ghafoor and Sharif are brothers, Ashiq and Riaz are brothers, while Sultan and Mian Khan are cousins (khalazad). There a pears to be nothing on the record to show that these sets were go connected inter se except that they atlegadly belonged to one party. It may also be observed, in this context that while Mohabbat and Barkat were residents of Chak No. 196-E. B., Yusuf of Chak No. 230-E.B., Sharif and Ghafoor of Chak No. 18 and Chak No. 204-E.B ,respectively, all the rest were residents of Chak No. 222-E.B.
4. The matter was reported by Nur Muhammad complainant at Vihari Police Station at 8-30 p.m., nine miles away from the spot vide report Exh. P. K. Which was 'recorded by Sultan Mahmood, Sub- Inspector P. W. 16.
5. Having recorded the statement, Sultan Mahmood Sub. Inspector repaired to the spot reaching there at about 10-30 p.m. He found all the four dead bodies lying at different places as detailed in the site-plan Exh. P. Z. He prepared injury statements Exhs. P. AA, P. BB, P. CC and P. DD of Ashraf, Shera, Rehmat and Qaim respectively and their inquest reports Exhs. P. AA/1, P. BB/l, P. CC/1, and P.
DD/I respectively. He then despatched the dead bodies to the mortuary for post-mortem examination under the escort of F. C. Shah Muhammad P. W. 5 Muhammad Anwar P. W., who was injured, was also present at the spot and his injury statement Exh. P. EE was pre--pared by the Sub- Inspector. Next morning he recovered a crime empty (Exh. P. 13) from near the dead body of Muhammad Ashraf as also a live cartridge Exh. P. 12 and took them into possession vide memo. Exh.
P. E. It was not sent to the Expert as the Sub-Inspector was informed that the crime empty was fired from the gun of Muhammad Ashraf deceased. He recovered blond-stained earth from four places where the dead bodies of Ashraf, Shera and Rehmat were lying as also where Anwar P. W. Was injured. No blood stains were found at the place where Qaim was found to be lying dead.
On the 13th of July 1967, Mian Khan, Sultan, Ashiq, Barkat, Mohabbat, Muhammad Din and Rashid accused were arrested. The same day, Mian Khan, while in police custody, got recovered barchha P. 14 from his house, which was lying behind a wooden rafter in one of the rooms. It was found to be blood-stained and was taken into possession vide memo. Exh. P. G. He also got recovered broken gun Exh. P. 15 in two pieces which was taken into possession vide memo. Exh. P. H. On the 17th of July 1967, Sultan appellant led to the recovery of a blood-stained spear Exh. P. 16 from a sugar-cane field which was secured vide memo. Exb. P. J. The same day, Barkat appellant led to the recovery of a pistol, Exh. P. 17 with one live cartridge Exh. P. 17/1 from within quilts lying on the bharoll in a room.
These articles were taken into possession vide memo. Exh. P. L. The same day, Mohabbat got recovered spear Exh. P. 18 from the cattle-shed of his dera which was taken into possession vide memo. Exh. P. M. Ashiq, Mian Khan and Mohabbat were found to have sustained Injuries. The Sub- Inspector prepared their injury statements Exhs. P. V, P. W. And P. X respectively. Rashid appellant, when was also injured, had also got himself examined in the hospital.
On the 28th of July 1967, Bahadur Khan P. W. Produced chadar Exh. P. 19 and shirt Exh. P. 20 of Anwar P. W. Which were taken into possession vide memo. Exh. P. Y. He also produced mukhtar-- mama Exh. P. 21 which was secured vide memo. Exh. P. Y.
6. On the 11th of July 1967, Dr. Mushtaq Ahmad, performed the post-mortem examination of the dead body of Muhammad Ashraf and vide post-mortem examination report Exh. P. N. Found the following injuries on it: ---
(1) A contusion mark, 9' x l", on the upper part of back.
(2) A stab wound, 3/4"x 1/2', penetrating into the chest cavity and the right side of back.
(3) A contusion, 6" x 1/2' en the upper side of right shoulder.
(4) A contusion mark, 4" x 1" on the back of right shoulder.
(5) A stab wound, 1-- x 3/4' penetrating into the abdominal cavity on the right side of abdomen below the umbilicus.
(6) A stab wound, 1--'x1/2' on the torn side of chest, 3" below nipple penetrating through the chest cavity.
(7) An incised wound, 1-- x -- on the left side of the head above the left ear.
(8) An abrasion, 1--' x 1/3", below the right eye.
(9) A contusion mark, 1/2' x I/2", on the left wrist.
(10) A contusion mark, 3 --" x 1/2" on the left deltoid muscle.
(11) A contusion mark, 3"x 1--", close to injury No.10.
(12) An abrasion, 1/2" x 1/3', on the left side of chest in the mid-axillary line.
(13) A contusion, 4' x 1', on the left shoulder.
(14) A contusion, 4'x 1", on the front of right shoulder.
(15) A contusion, 1'x 1/3', on the front of the left leg on the middle.
(16) An abrasion, 1 --'x 1/3", on the left thigh:
(17) A swelling, 3--' x 1--", on the back of the right hand.
(18) A lacerated wound, 1/3' x 1/3', with fracture of the underlying bone on the middle phalanx of left ring finger.
(19) A lacerated wound, 1/3"x 1/3", bone deep below the left elbow.
On internal examination, the left 8th and 9th ribs were found cut under injury No. 6 and the right 6th rib was found cut under injury No. 2. The left lung, paricardium and heart were found cut under injury No. 6 and the right lung, was found cut under injury No. 2. The stomach and the small intestines were empty and the large intestine was full. Death, in the opinion of the doctor, had occurred due to shock and haemorrhage pit account of rupture of heart. Injury No. 6 was sufficient to cause death in the ordinary course of nature. Injuries Nos. 2, 5, 6 and 7 were, caused by sharp- edged arid sharp-pointed weapons, while the rest were caused with blunt weapons. Death had occurred austacttaueously and time between death and post-mortem was 12 to 18 hours.
The same day, the doctor conducted the post-mortem examination of the dead body of Shera deceased and vide his post-mortem report Exh. P. O. Found the following injuries:-
(1) A lacerated wound, 1 "x --, bone deep on the top of head.
(2) An incised wound, 1--' x --" x --, on the back of right forearm.
(3) A contusion, 2" x 1/2', on the back of right wrist.
(4) A contusion, 4' x 1/2", on the back of left forearm.
(5) An abrasion, 2' x 1/2', on the back of left wrist.
(6) An abrasion; 3" x 1/2', on the left shoulder.
(7)'An abrasion, 1/2' x 1/2', on the back of left shoulder.
(8) An incised wound, 1--" x 1/2' x 1/2", on the left buttock.
(9) An incised wound, 1" x 1/3' (torn) on the right side of back.
(10) A contusion, 1" x 1/3", on the right side of chest.
(11) A stab wound, 1--x 1/2', penetrating into abdominal cavity on the right side of abdomen below the umbilicus.
(12) A contusion, 1--" x I", on the left side of head, close to the forehead.
On internal examination, the left parietal and occipital bones were found fractured. There was haemorrbage in the brain. Clotted blood was present. The stomach and the small intestines were empty. In the opinion, of the doctor, death bad occurred as a result of shock and brain haemorrhage on account of injury No. 1 which was fatal and sufficient to cause death in the ordinary course of nature. Injuries Nos. 2, 8, 9 and 11 were caused by sharp-edged and pointed-end weapon and the rest with blunt weapon. Death had occurred within two minutes of the receipt of the injuries, while time between death and post-mortem was 12 to 18 hours. The same day, the doctor performed the autopsy on the dead body of Rehmat and vide post-mortem examination report Exh. P. Q. Found the following injuries:
(1) A lacerated wound, 1--'x 1/2', on the head, close to forehead.
(2) A lacerated wound, 1--' x 1/2, bone deep on the left side of head.
(3) A lacerated wound, 1 x 1/2" x 1/2'3 close to injury No. 2.
(4) A lacerated wound, 2" x 1", bone deep on the left side 9f back of head,
(5) A contusion mark, 1" x --" on the back of left shoulder.
(6) A contusion mark, 7' x 2' on the left deltoid.
(7) An incised wound 1" x --' bone deep on the left arm just below the elbow.
(8) An incised wound, -- x 1/3' x 1/3' on the back of right forearm.
(9) An abrasion --" x -- on the left (torn).
(10) 3 contusion marks, 4" x -- close to each other on the left thigh.
(11) A contusion mark, 3' x 1' on the left iliac crest.
(12) A contusion 3-- x 1' on the left side of chest.
On internal examination, the left parietal and the occipital bones were found fractured. There was haemorrhage in the brain and clotted blood was present. The stomach and the small intestines were empty and the large intestines were full. In the opinion of the doctor, death had occurred due to shock and brain haemorrhage. Injuries Nos. 2, 3 and 4 were fatal and sufficient to cause death in the ordinary course of nature. Injuries Nos. 7 and 8 were caused by sharp-edged weapon and the rest with blunt weapon. All the injuries were ante-mortem. The duration between injuries and death was within few minutes and between death and post-mortem was 12 to 18 hours.
The same day, the doctor performed the post-mortem examination of the dead body of Qaim Din, and vide post-mortem examination report Exh. P. R. Found a circular lacerated wound, one inch on the left side of abdomen in the opigastrium just below the rib. A pellet was removed from the skin on the right side of back. On internal examination, the abdominal cavity was found full of blood. The left lobe of liver was found ruptured. The stomach and the small intestines were empty and the large intestines were full. Death, in the opinion of the doctor, had occurred due to shock and haemorrhage on account of the firearms injury which was sufficient to cause death in the ordinary course of nature. Death had occurred within two minutes of the receipt of the injury, while time between death and post-mortem was 12 to 18 hours.
The same day, the doctor examined Muhammad Anwar P. W. And vide medico-legal report Exh. P.
S. Found the following injuries on his person: -
(1) A stab wound, 1' x 1/2' x 3', on the upper part of outer side of left thigh.
(2) A stab wound, 2' x 1' x 1", on the front of upper part of right thigh.
(3) A stab wound, 1I' x I' x 1 ", one inch middle to injury No. 2. Injuries Nos. 1 and 2 were communicated with each other.
(4) An incised wound,--, 1 J' x 3/4" x 1 /2', on the right sgotuou
(5) A swelling, 2' x 3', on the back of medial side of left hand.
(6) A red contusion, 6' x 1', on the right side of back.
Injuries Nos. 5 and 6 were caused by blunt weapon and the rest with sharp and pointed-end weapon, within 24 hours.
The same day, the doctor also examined Rashid appellant and vide medico-legal report Exh. P. T.
Found a stab wound with a wound of entrance, 2' x 1/2' on the right side of back close to the mid- line. There was also a wound of exit, 3/4' x 1/3' on the right side of chest in the mid-axillary line.
According to the doctor, the injury was simple caused by a sharp-edged and, pointed-end weapon within 12 hours.
The same day, the doctor examined Mst. Khurshid, wife of Sultan appellant, and vide medico-legal report Exh. P. U. Found the following injuries on her person : .
(1) A lacerated wound, 1l"-x 1/3" x 1/3', on the middle of head close to forehead.
(2) A lacerated wound, 2' x 4' x 1/3', on the right side of head three inches above the right ear.
(3) A superficial cut, 1/3" x 1/6' x 1/3', on the left leg just below the knee.
(4) An abrasion, 1/3' x 1/3', on the back of right hand.
(5) A red contusion, 2' x 1/2', on the left knee.
The injuries were simple. Injury No. 3 was caused by a sharp pointed weapon and the rest with blunt weapon within twelve hours.
On the 13th of July 1967, the doctor examined Muhammac Ashiq appellant and vide medico-legal report Exh. P. V. Found thi following two injuries on his person :-
(1) An abrasion, 1" x 1/3", on the right knee.
(2) An abrasion, 1/3" x 1/3' on the left knee.
The injuries were simple and caused by blunt weapon within thre~ to four days.
On the same day, the doctor examined Mian Khan appellan and vide medico-legal report Exh. P. W.
Found a lacerated wound 3' x I /3' X 1 /6' on the back of right shoulder. Tbis injury wa simple caused by a blunt weapon within three to four days.
On the same day, the doctor examined Muhammad Di appellant and vide medico-legal report Exh.
P. Y found tb following two injuries on his person :-
(1) An abrasion, 1 r X 1/6', on the left shoulder.
(2) An abrasion, 2' x 1/8', on tire left cheek.
The injuries were simple caused by blunt weapon within tha to four days.
After the completion of the investigation, the Sub-Inpector sent up the twelve appellants to face inquiry and trial.
7. At the trial, the prosecution rested on the ocular testimony of the four eye-witnesses, namely, Gul Muhammad P: W. 13, Muhammad Anwar P. W. 14, Sohna P. W. 15 and Nur Muhammad complainant, Chairman of the Union Council, who died before tire trial and whose statement before the committing Magistrate was transferred to the Sessions File under section 32 of the Evidence Act. In addition to this, there was the evidence of recoveries and of course the medical evidence.
8. The appellants pleaded not guilty to the charge and dented the allegations. Mian Khan stated that at the relevant time, he was at Gujrat, having left Chak No. 222/E. B., seven days prior to the occurrence and it was on his return on the 12th of July 1967 that he learnt about this. His mother informed him that the three deceased along with Muhammad Anwar P. W. And others had raided is house in order to abduct his sister Mst. Khurshid for the reason that he was suspected of having illicit connection with Mst. Sardaran, a cousin of Ashraf deceased. Likewise, Sultan pleaded absence from the village on toe pretext of having gone to village Summon Pindi in Gujrat District from where on his return on the 17th of July 1967, be learned that the- deceased and others had raided their house in order to abduct his wife Mst. Khurshid when several persons present at the fair of Pir Punnu intervened and gave injuries to the abductors. He placed on the record several documents in defence which are Exh. D. E. To D. K. To which we will presently advert. Mohabbat stated that he abducted Mst. Ghafuran, a niece of Mehnga P. W., had brought a complaint against Nur Muhammad, Chairman, resulting in the award of a sentence of fine to him, that having married.
Mst. Ghafuran he had sought her restoration through issuance of search warrants of the house of Mehnga and that he had been falsely implicated on account of enmity with Nur Muhammad and Mehnga. More or less the same position was taken by his brother Barkat. Sharif and Ghafoor appellants also attributed their false implication to Nur Muhammad who was at logger-heads with their landlord Muhammad Hussain Patwari, who had allegedly got Nur Muhammad penalised when the latter got him suspended. Yusuf attributed his false implication on the ground that he may not be able to prosecute the case of the murder of his brother Qasim who had been shot dead by Ashraf deceased and others. Muzaffar, Riaz, and Ashiq appellants attributed their false implication to their enmity with Hayat Lambardar P. W. 12 who was inimical to them on account of the prosecution of his cousins Abdul Haq and Qurban in a criminal case. Muhammad Din also attributed his false implication to his enmity with Muhammad Hayat Lambardar and added that Dhal Bachh had been handed over from Muhammad Hayat to his father. However, a more specific plea was raised by Rashid appellant in the following words: - "At the time of occurrence, I was coming after saying my prayer of Digar (Asar). I heard alarm and so I went towards the house of Sultan. I found that ABhraf, Rehmat, Shera and Anwar had forcibly lifted Mst. Khurshid and were taking her away. Qaim Din resisted and Ashraf fired a shot at him and killed him. I went forward and I was given a barchha blow. On hearing the gun report, many persons from the meld came and so there was a fight between the party of Ashraf and others. I do not know what happened in the fight . . . . . . As I was injured, therefore, the other party apprehended that I would become a witness against them so they made me an accused in the case."
Of the documents relied upon by the defence and placed on record, Exh. D. J. Is the initial report made by Riaz appellant against nine persons, including Qurban, Abdul Haq etc. In a case under sec--tions 148/452, P. P. C., dated the 23rd of March 1967, at Police Station Vehari. Exh. D. F. Is the concluding report of the criminal case registered at the instance of Riaz against Qurban, Abdul Haq etc. Exh. D. G. Is a copy of a Court statement of Riaz appellant, in the same case when he was examined as P. W. 5 to the Court of the Resident Magistrate Vehari. Exh. D. H. Ix the statement of Sultan appellant who appeared as P. W.
6. Exh. D. I. Is the statement of Ashiq appellant who was examined as P. W. 7 Exh. D. K. Is a copy of an entry of the General Register pertaining to a criminal case against Mian Khan and Zafar Ali under section 452/376, P. P. C. Decided on the 18th of October 1;960. Exh. D. L. Is a copy of the Khasra Girdawari pertaining to the land of Muhammad Hayat in Chak No. 222-E. B. Exh. D. M. Is a copy of the receipt dated 31st of July 1964 purporting to show that an amount of Rs. 3,777.89 was deposited in the Government Sub-Treasury by Muhammad Din Lambardar of Chak No. 222-E.B. Another document which again appears to have been inadvertently marked as Exh. D. M. Is a copy of an application, dated the 10th of June 1967, filed before the District Magistrate by Mohabbat appellant, against certain persons for the restoration of Mst. Ghafuran whom he claimed to be his wife Exh. D. N. Is a copy of a search warrant dated the 6th of May 1967, issued by the District Magistrate in that case. Another document inadvertently marked as Exh. D. N. Is a copy of a list of persons who defaulted in payment of land revenue of Kharlf 1963 in the path of Abdul Ghani Lambardar. Exh. D. O. Is a copy of Nikahnama of Mohabbat with Mst.
Ghafuran purporting to show that they were married on the 8th of March 1967. Another document marked Exh. D. O. Is a copy of Dhal Bachh for KhariJ (the year is not mentioned). Exh. D. P. Is a copy of the order of the D. C. O. Dated the 20th of March 1966, whereby an application of Mohabbat against Nur Muhammad, Chairman was filed.
In an elaborate discussion, the learned trial Judge discarded the defence version and relying on the statement of Muhammad Hayat Lambardar and Nur Muhammad, Chairman found that the motive stood established beyond doubt. He placed full reliance on the ocular testimony of Muhammad Anwar, Gul Muhammad and Sohna P. Ws. And the transferred statement of Nur Muhammad, complainant, supported by medical evidence as well as that of recoveries which all disposed to the judgment of conviction by him.
9. Learned counsel for the appellants raised the following contentions before us
(1) That, in all probability, the initial report was prepared at the spot after preliminary investigation ;
(2) That the alleged motive was neither established nor otherwise convincing;
(3) That the prosecution had failed to produce a single disinterested witness although hundreds of people happened to be present in the fair;
(4) That even otherwise the statements of the witnesses produced were thoroughly discrepant and materially inconsistent;
(5) That the evidence of recoveries was wholly unworthy of credence; and
(6) That the presence of Mst. Khurshid Begum at the spot and the undeniable fact of her being injured without a satisfactory explanation having been offered by the prosecution, lent considerable support to the defence.
Taking first the point of motive, it is in evidence that although Sultan son of Hayat, described as Sultan cripple, whose wife had been abducted by Sultan appellant and passed on to his brother Fazal, was stated to be alive at the time of the occurrence as also at the time of the trial, as admitted by Bahadur P. W. 8, yet he did not enter the witness-box. His non-appearance as a prosecu--tion witness does not, in our opinion, make the slightest difference inasmuch as the allegation that he wanted to avoid the mutation of his land after his death, in the name of the two illegitimate sons of his wife fathered upon him, even otherwise stands fully established by the statement of Nur Muhammad complainant, Chairman of the Union Council, who had died before the trial and his statement before the committing Magistrate was transferred to the Sessions File, as also by both Muhammad Hayat P. W. 12 and Bahadur P. W. 8 who held the power of attorney. The latter fully supported Sultan and deposed that in his capacity as attorney of Sultan, he leased out land to his brother Muhammad Anwar P. W. 14 and Ashraf deceased. He, however, stated that the land was a pact: of the joint holding shared by Sultan cripple with his brother Akbar and sister Mst.
Fazlan. He added that before he appointed Ashraf and Anwar as tenants of the land of Sultan, it was in possession of Qaim Din deceased, Sultan, Riaz, Ashiq, Muzaffar and Muhammad Din appellants etc. A copy of the registered power of attorney Exh.P.MM is on the record.
10. It was argued on behalf of the appellants that when the possession of the land of Sultan cripple had been peacefully surrendered by the accused party, to Ashraf, deceased and Muhammad Anwar P. W. There was hardly any occasion for them to re-agitate the matter. No doubt it is the prosecution's own case is clearly mentioned in the initial report by Nur Muhammad, and later deposed to at the trial by the P. Ws. That the accused party had not resisted the transfer of possession and had peacefully surrendered the same. Apparently, in this background the alleged motive would lose much of its force. However, on closer examination, we find that there was an immediate motive. Muhammad Hayat Lambardar clearly stated that Muhammad Din appellant had installed a tubewell in his land. The water passed through land which was earlier held by Sultan, but was later taken possession of by Ashraf deceased. Since relations between the parties were strained, Ashraf deceased got the watercourse dismantled at the bands of Shera deceased.
The demolition of this watercourse also deprived Qaim Din deceased and Yusuf appellant of the source of their irrigation. Accordingly, all the appellants made a common cause against Ashraf deceased and his party. We are, thus, inclined to believe that at least some of the appellants who belonged to the same party bad direct and immediate motive which stands established.
11. This brings us to the next contention, namely, that the initial report was prepared by the Sub- Inspector at the spot. The principal ground taken in support of the contention was that in his statement before the committing Magistrate, transferred to the Sessions file on account of his death, Nur Muhammad complainant had clearly admitted that he did not know the parentage of some of the accused persons and, yet the detailed particulars of all the accused persons including their parentage were mentioned in the F. I. R. The explanation offered by Nur Muhammad was that possibly, be knew the parentage of all the accused persons when he lodged the report and subsequently forgot it in the case of some of them. Having visualised the position, we do not find anything unusual or doubtful about the explanation offered by Nur Muhammad. In the initial report he had not given parentage of Ghafoor and Sharif, who were residents of Chak No. 304/E. B.
Obviously, we could have found it difficult to believe even if it had been asserted by Nur Muhammad that he knew the parentage of all the accused persons who belonged to different villages, none hailing from his own Chak No. 198/13. B. Which was at a distance of a mile or so from the place of occurrence. However, having considered the fact that the occurrence had taken place near in a place where a kabaddl match was being witnessed by a large number of persons hailing from all the surrounding villages, at a distance of about one killa from the village abadi of Chak No. 222/E. B. It can safely be presumed that even if the parentage of some of the accused persons or even their names were not earlier known to Nur Muhammad, who being the Chairman of the Union Council, would certainly have vast personal contacts, these would have been supplied to him by several persons who would have gathered at the spot. We are, therefore, inclined to accept his explanation and overrule the contention.
12. As regards the contention that the prosecution had not been able to produce a single distinterested witness particularly when a large number of persons had already gathered to witness the kabaddl match and as such must have seen the occurrence or at least most of it, no doubt one would have expected the prosecution to lay hands on a comparatively larger number of witnesses at least some of whom should have been completely disinterested yet having regard to the too well-known reluctance to enter the witness-box and the usual tendency to shirk this normal obligation of appearing as witnesses of truth, amongst members of the public in this country as perhaps anywhere else, we are not 't inclined to attach much importance to it and the fate of the case will depend on the credibility of the witnesses produced by the prosecution in support of its case and the worth of their testimony.
13. Before discussing the ocular evidence, and that of the recoveries, in the light of its criticism by the learned counsel for the appellants, we would like to deal with the plea of defence sought to be supported on the strength of the undeniable presence of Mst. Khurshid Bibi, at the spot and the existence of injuries on her person. We have already reproduced the plea of defence in the words of Mian Khan appellant supported by Rashid appellant which in substance was that the three deceased Ashraf, Rehmat and Shera accompanied by Anwar P. W. And others had come to the house of Mian Khan. They abducted his sister Mst. Khurshid Bibi in order to avenge his suspected illicit connections with Mst. Sardaran a cousin of Ashraf deceased. They forcibly lifted Mst. K.Hurshid Bibi. Qaim Din deceased accused resisted when Ashraf deceased fired a shot at him and killed him.
Rashid then went forward and was given a barchha blow when more persons arrived at the spot and the fight took place drawing in several persons from both sides. We have carefully considered this plea acid are clearly of the view that it cannot stand the test of closer scrutiny, The arrival of Mst. Khurshid Bibi, at the time of occurrence, was clearly mentioned by Nur Muhammad complainant, who also made a specific reference to the injuries sustained by her. According to the prosecution, Qaim Din deceased-accused, Rashid ippellant and Msx. Khurshid Bibi were injured at the hands of their own partymen. It is also the case of the prosecution that Ashraf deceased was holding a gun and he fired with it in self-defence and fell down on receipt of a spear blow at the hands of Sultan appellant. Having considered the position, we are inclined to believe without hesitation that oaim Din had died as a result of the shot fired by Ashraf deceased. This part of the defence version was impliedly admitted by the P. Ws in cross-examination. The Sub-Inspector toad recovered the crime empty near the dead body of Ashraf deceased and had not sent the same to the Chemical Expert for the reason that it hail been fired through the gun of Ashraf deceased which was later received at the instance of Mian Khan appellant ill two pieces. However, in so far as the allegation regarding the admitted abduction of Mst. Khurshid Bibi, is concerned, it seems to have no basis on the record except the bare statement of Mian Khan and Rashid appellants. She was found to have sustained five injuries Two were lacerated wounds, one superficial cut inn tae let leg and an abrasion on the back of right hand and a contusion ' on the left shoulder. She was wife of Sultan appellant and sister of Mian Khan appellant, and as such readily available to them to be produced in defence, but surprisingly enough she was not even produced before the Sub- inspector who stated as follows:- "Mst. Khurshid was not produced before me. I made my efforts to trace Mst. Khurshid and I even went to the hospital to see her but I could not find her. The accused party were avoid--ing to produce her before me, and therefore, I could not record her statement."
According to Mian Khan appellant, he was not personally present at the relevant time when his sister was said to be abducted, having gone to Gujrat, and on his return was informed by his mother, who too, was not produced in defence at any stage. It is thus, clear to us that this position was taken up by the appellant, for the first time at the trial and was merely an afterthought and concoction with some semblence of acceptability lent to it by the injuries on the person of Mst.
Khurshid Bibi. No such plea appears to have been raised either before the Sub---Inspector or during the enquiry. Even otherwise having regard to the time and place of the occurrence it is highly improbable that members of the complainant party should have conceived of such a plan to abduct Mst. Khurshid Bibi when hundreds of people were collected at a distance of about a killa or so from the village abadi and could be readily attracted on an alarm. Thus, the choice of time and place of abduction, if at all, conceived, would be another equally strong doubtful circumstance militating against the acceptability of this plea. Accordingly, we have no hesitation in rejecting the plea of defence.
This brings us to the most important contention as to --- how far reliance can be placed on the testimony of the eye-witnesses, As already stated, of the four eye-witnesses produced, Nur Muhammad complainant had already died before the trial and his statement before the committing Magistrate was transferred to the Sessions file, wherein he gave an elaborate eye- witness account. He was subjected to a lengthy cross-examination. He admitted that Ashraf deceased was the cousin of his wife. He denied the suggestion that he was not present at the spot at the time of occurrence, and that he has injured Rashid and Qaim Din by firing at them. He also denied the suggestion which was derogatory to the defence plea of abduction, that he had actually given a beating to Mst. Khurshid Bibi is her house. It way alleged against him by Barkat Ali and Mohabbat appellant that they had sent complaints against Nur Muhammad, Chairman, Union Council who had falsely implicated them. Ghafoor appellant alleged that he was a tenant of Muhammad Hussain who was at logger-heads with Nur Muhammad and was instru--mental in the imposition of alleged against him and that in retaliation, Nur Muhammad got hint suspended and for that reason he had him and his brother Sharif appellants falsely implicated in the case. In view of the admitted fact that a kabaddi match was going on at a short distance frown the village Abadi where the occurrence took place, we find no reason to believe the claim of Nur Muhammad that he as also present the spot to witness the kabaddi match. His relationship with Ashraf deceased would not be sufficient to render his testimony doubtful so as to warrant its rejection. His testimony does not pear to us to suffer from any inherent infirmity. He is a respectable person of the locality being the Chairman of the Union Council and appears to have stood up well to a lengthy and searching cross-examination.
14. We next come to Gul Muhammad (P. W. 13). He was a. Resident of Chak No. 198/E. B. And had also gone to see the kabaddi match along with Nur Muhammad informant, Shera (P. W. 15), Ashiq and Zulfiqar who were given up as won over. According to his account they stood at a short distance from the three deceased Ashraf, Rehmat and Shera, and the injured witnesses Anwar (P. W. 4). The appellants shouted at them using offensive language. The three deceased persons and Anwar considered it safer to leave the place and so accordingly departed, but were followed by the accused persons. The attack was opened by Barkat firing a pistol shot in the air apparently with a view to scare away the people. Anwar, Sultan and Mohabbat gave spear blows to him while Yousaf and Qaim Din gave him `stack blows.. Having felled him on the ground, they pursued the three deceased and overtaking them at a distance of two killas Ghafoor, Sharif, Riaz and Hashu accused encircled Shera. Sultan, Mian Khan; Rashid, Yousaf and Qaim Din encircled Ashraf, while Muhammad Din and Zafar and Mohabbat encircled Rehtnat. 'Yousaf and Qaim gave stick blows to Ashraf. Ashraf ured with his double-barrel gun in self-defence. Barkat simulta--:teously fired with his pistol. Qaim Din was hit, but the witness could not state whether he was hit by the shot of Ashraf or that of Barkat. Yousaf gave a stick blow on the gun of Ashraf which broke into two pieces. Sultan and Mian Khan gave spear blows, Ashraf Another blow given by Mian Khan with his spear accidentally hit Rashid appellant. In the meantime Mst. Khurshid also came at the place of occurrence and raised an alarm and also received some injuries. Rashid appellant and Qaim Din were removed from the place of occurrence. After sometime Muhammad Hayat Lambardar also arrived there. We would also readily admit the presence of this witness at the spot for the reason that it would be quite natural for the people of the surrounding villages to go to the spot in order to witness the kabaddl match. Although he has not clearly stated that Qaim Din was killed as a result of the shot fired by Ashraf yet we have no hesitation in holding that Ashraf having been encircled by several persons would have fired with his gun in self-defence killing Qaim Din deceased. The presence of Mst. Khurshid Bibi at the spot is also undisputed. However, the existence of five injuries on her person referred to earlier, could not have been accidentally caused to her by members of her own party including her husband and brother and as such have not been satisfactorily explained by the prosecution. However, as discussed earlier, the plea raised by the defence on the basic of her injuries holds nN svatter and even otherwise was raised for the first time at the trial, Rashid appellant admitted his presence and sustained a spear blow but he did not name the assailant in his statement under section 342, Cr. P. C. As stated earlier the explanation offered by the prosecution was that he had been accidentally hit by Mian Khan. Although such a possibility cannot be completely ruled out, yet the absence of a satisfactory explanation of the injuries of Mst.
Khurshid Bibi would also render doubtful the explanation of the injury of Rashid appellant.
15. We next come to the statement of Muhammad Anwar (P. W. 14) who had the stamp of injuries on his person leaving no doubt as to his presence at the relevant time. He did not --know whether Qaim Din was hit by the shot fired by Ashraf or Barkat because they had fired with their respective - seaports simultaneously. Same position was taken by Gul Muhammad, (P. W. 13) who also stated that the gun of Ashraf had broken into two pieces as a result of a. Stick blow given by 1kousaf-- Muhammad Anwar (P. W. 14) stated that firstly he went to the west and then taking a turn to avoid his contact with the accused party, he went towards the Chak, At that time Mst. Khurshid Bibi ran to the place of occurrence but he did not see if she was injured by any of the accused. He entered into the Ihata of Abdul when the police came. Although he was a permanent resident of Chak No. '15/12-L District Sahiwal, yet, it appears that at the time of occurrence he was residing in Chak No. 222/E. B, distance between the two being 5/6 miles. He was brother of Babadur P. W. Attorney of Sultan cripple, the dispute over whose land led to these murders. Rehmat deceased was the servant of Ashraf deceased. Shera was the tenant of Ashraf deceased. No wonder therefore, that being a co-lessee of the disputed land with Ashraf deceased he was also made the target of the attack.
16. We next come to the statement of Shera (P. W. 15) again a resident of Chak No. 198/E. B. He also went to see the fair and gave a detailed description of the occurrence. He, however, introduced a horse saying that Nur Muhammad was on horse-back. He stated that while they were still at a distance of 2J killas from the shrine of Pir Punnu when they met Nur Muhammad on horse-back. He referred to the arrival of two women from the village one of whom Mo. Khurshid Bibi came in the thick of the fight and received injuries, while the other stayed away. He also referred to the breaking of Ashraf's gun at the hands of Yousaf. He mentioned the injuries sustained by Rashid and to a shot hitting Qaim Din one of the deceased accused. He referred to the arrival of Muhammad Hayat Lambardar and departure of Nur Muhammad for lodging a report. He stated in the first instance that Qaim Din was lifted away by the accused party towards, the village- but again referred to the presence of four dead bodies at the time of arrival of the police. The confusion was sought to be resolved by a Court question to which he replied as follows: - "The correct position is that there were 3 dead bodies, of Ashraf, Rehmat and Shera, when we left, but we came back on the arrival of police, there were four dead bodies of Qaim Din was also there."
Having already discussed the plea of defence we find that the only circumstance which creates some doubt and does not appear to have been satisfactorily explained is that of the five injuries sustained by Mst. Khurshid Bibi and the one by Rashid appellant: In his statement under section 342, Cr. P C. Rashid did not specifically attribute his injury to any other of the deceased or the P. Ws.
According to the prosecution, however, he also got hit at the hands of one of his own party men namely Mian Khan. In fact, these are not the only injuries sustained by members of the accused party. Besides injuries to Mst. Khurshid Bibi and Rashid appellant, three other appellants namely, Ashiq, Mian Khan and Muhammad Din were also injured. Ashiq and Mohammad Din had simple abrasions while Mian Khan had a lacerated wound on the back of his right shoulder. Duration of these injuries by and large corresponded to the time of occurrence and as such they could be presumed to have been sustained during the fight. This would go to -show that the deceased had also inflicted some injuries in self-defence which position has not been specifically admitted that Qaim Din had been hit by a shot fired by Ashraf. Thus, the only flaw that one discovers in the prosecution version is the want of satisfactory explanation of some of the injuries sustained by the members of the complainant party. The answer to the question as to whether this flaw can be deemed to be fatal to the prosecution case as a whole warranting its rejection in toto, is clearly negative, and the Court has to separate the grain from the chaff.
17. This brings us to the last contention raised by Mr. Saleem, learned counsel for the appellants, that in view of the interested nature of the testimony of the P. Ws. Coupled with some doubtful circumstances, the account furnished by them would call for independent corroboration before forming their testimony as the basis of conviction. It was contended that the evidence of recoveries was not worthy of credence. Of the recoveries made by the police in the course of investigation spear P/14 and gun P/12 broken into two pieces which was the licensed gun of the father of Ashraf were made at the instance of Mian Khan. Sultan led to the recovery of spear P/I5, Mohabbat to that of spear P/14, while Barkat to that of pistol P/17 which was not found to be connected. In other words there was no corroboration against Barkat, Sharif, Ghafoor, Yousaf, Muzaffar and Riaz appellants. It would be pertinent to mention in this context that although while closing his case the Public Prosecutor purported inter alia to have tendered in evidence the Serologist's report Exh. P. L. L., the latter was, in fact, the report of the Fire-arm Expert regarding the .12-bore pistol recovered at the instance of Barkat Ali. Since the report of the Serologist was not available on the record, it was considered necessary to record the statement of the Serologist by way of additional evidence at the appellate stage who was subjected to a lengthy cross-examination by Mr. Saleem. He produced the original record in Court on the basis of which report Exh. C. W./A. Was prepared and placed on the record of this case. According to this, spears P/14, P/15, P/16 and P/18 were found to be stained with human blood. Having considered the evidence of these recoveries supported by the testimony of Nur Muhammad, Chairman of Union Council and Muhammad Hayat Lambardar two respectable persona and that of Rashid P. W., we have no reason to disbelieve them. Besides this, Mian Khan, Ashiq, Muhammad Din and Rashid appellants were found to have sustained injuries which would also furnish further corroboration to the ocular testimony.
18. As a result of the above discussion, we are inclined to hold that Barkat Ali, Sharif, Ghafoor, Yousaf, Muzaffar and Riaz in whose case no corroboration is available, are entitled to benefit of doubt and are accordingly acquitted. Their death sentences are not confirmed. They may be set at liberty subject to their detention in any other case. Offences are, however, fully brought home to Mian Khan, Ashiq, Muhammad Din, Rashid, Sultan and Mohabbat whose sentences of death are confirmed. Their appeal is dismissed in toto. The appeal partly succeeds to this extent.
19. This brings us to the last point which is the subject-matter of Cr. Revision No. 696/70 for enhancement of sentences with the prayer for the award of compensation to the heirs of the deceased under the mandatory provision contained in section 544-A, Cr. P. C. The revision was admitted to a full hearing by a Division Bench of this Court. Mr. Cale, the learned counsel for the appellants, challenging the liability of the new provision under section 544-A, inserted by the West Pakistan (Amendment) Act, 1963, resisted the petition on the two-fold ground, firstly, that the jurisdiction to award compensation was confined only to the trial Court and could not be extended to the High Court so as to be exercised at the appellate stage; secondly, in any case, the provision was ineffective on account of unenforceability. In support of the first contention, it was argued on the analogy of the provision contained in section 250 of the Cr. P. C. Dealing with the competence of a Magistrate to award compensation to an accused discharged or acquitted in a case of false, frivolous and vexatious prosecution, that unlike the elaborate procedure prescribed therein for the award and mode of realization of compensation, the provision contained in section 545 left a host of questions unresolved. Reliance was placed in this regard on Manzoor Hussain v. The State (PLD 1965 Dacca 348). In answer to the question that all powers exercisable by a Magistrate could be deemed to have been exercisable with equal, if not greater competence, by the High Court, it was contended on the basis of the following authorities that the Magistrate did not include the Appellate or the Revisional Court. Reliance was placed in this regard on Mehi Singh v. Mangal Khandu (39 Cal. 159), Hari Chand v. Fakir Sadrudln (1901) 3 Born. L R 841), Shahpurji Bezonji Motivalla v. Dossaphoy Bezonji Motivalla (7 Bom. L R 988) and Notified Area, Kharar v. Karta Ram and another (7 Bom. L R 988 L H R 152).
20. It was next contended on the analogy of the provision contained in section 546-A of the Cr. P. C.
Which empowered a "Court" in the case of a complaint of a non-cognizable offence to direct an accused, in the event of his conviction, to compensate t1Pe complainant on pain of imprisonment.
The word "Court" as used in this context did not include the Appellate Court or the High Court as clearly envisaged by subsection (2) ibid which specifically provided that the Appellate Court or the High Court could also make a similar order in exercise of their appellate and revisional jurisdiction respectively. Likewise it was contended on the basis of the provision contained in sections 519 and 520, Cr. P. C. Dealing with compensation of innocent purchasers for value, of stolen property belonging to another person that a specific provision was made in this regard empowering the Appellate and Revisional Courts to modify, alter or amend such an order or make any further order that may be just and proper in the circumstances.
21. Lastly, it was contended that assuming that the High Court was competent to make such an order, its enforceability would give rise to a number of complicated questions. Some of these were posed as follows: -
(i) It was argued that if A, B and C murdered their common ancestor being his sole heirs, even the Court being under an obligation to award compensation, (ii) there may be rival claimants to heirship whose dispute could alone be determined by a Court of competent jurisdiction and yet no reference is made to those, (iii) that no maximum or minimum limit of compensation was prescribed nor was the mode of apportionment and sharing the compensation between the several convicts and the several heirs explained, (iv) it was contended that in the case of murders having taken place during free fights between the parties resulting in their convictions, the question of the grant of compensation would not be free from difficulty, (v) The last question posed was that whether in their case of offences compulsorily punishable with a sentence of fine in addition to that of imprisonment, an additional sentence of fine was also to be awarded second time by way of compensation, as prima facie indicated by the mandatory nature of the provision.
22. Mr. Sidhwa, learned counsel for the State, supported the view taken by Mr. Saleem and referred to the provision contained in sections 106 and 345 of the Cr. P. C. Wherein the word "Court" did not include the High Court and as clearly established by specific provisions made in section 106(3) and section 345(5) in order to confer the same powers on the High Court as were conferred on the trial Court. He further contended that in the absence of any reference to the means of income of the convict justifying the imposition of a particular quantum of fine, the same could not be held to be justified and had to be specifically provided for. Reliance was placed in this regard on Farzam Khan v. The State (PLD 1966 Pesh. 5), and Punjab Chief Court decision Chuha v. Emperor ((1913) 20 1 C 1002).
23. On the other hand, Mr. Muhammad Anwar Buttar, learned counsel for the petitioner, contended that it was not at all necessary to prescribe anelaborate mode of award and realization of compensation inasmuch as under section 423(1)(d), Cr. P. C. High Court was competent to pass any consequential or incidental order deemed to be just and proper in the circum--stances of the case. Reliance was placed in this regard on Karl Singh v. Tufani Dhanuk (14 C W N 212). It was further contended that unenforceability was different from impossibility and that even under sections 250 and 445, no elaborate procedure or mechanic had been laid down. It was argued on the basis of Muhammad Amin v. Jogendra Kumar Bannerjee (PLD 1947.P C 95) that damages could be as sessed by this Court in its own discretion. Lastly, it was contended that under Muslim Law, determination of legal heirs presented no difficulty as it hardly left any room for doubt or dispute.
24. Section 544-A which was added by the West Pakistan Act XI of 1963 reads as follows: - "Compensation to the heirs of the person killed etc.-When any person is convicted of an offence involving death, hurt or injury to, loss, destruction or theft of property, the Court while sentencing the accused shall unless for reasons to be recorded it otherwise directs, award compensation to the heirs of the person killed, the person injured or the person whose property has been injured, lost or destroyed, as the case may be.
The amount of compensation awarded by the Court under this section shall be regarded as a sentence of fine.
No person who has been directed to pay compensation under this section, shall by reason of such order, be exempted from any civil liability in respect of such injury loss or destruction. Any amount paid under this section shall be taken into account in awarding compensation to such person in any subsequent civil proceedings."
The expression "the Court while sentencing the accused" would obviously refer to the trial Court and not to the High Court which t merely upholds or confirms a sentence and does not initially impose a sentence on an accused person. Again, a specific reference to, the High Court in sections 106(3), 345(5) anal 5464(e); which contain similar provisions, would clearly show that - such a conferment of powers on the High Court has to be specifically- provided for and cannot be spelt out on the pretext of being a consequential order as contemplated by section 423(1)(d), Cr. P. C.
25. It appears that there was some conflict of views at the earlier stages in regard to the competence of the High Court to award the compensation under section 250, Cr. P. C. A negative view was taken in Bali Pande v. Chitten (I L R 28 All. 625). A contrary view was, however, expressed in Kari Singh v. Tujani Dhanuk relied upon by Mr. Bhuttar, learned counsel for the petitioner. 1t was held that the award of compensation could be legitimately made by the appellate Court under section 423(1)(d), Cr. P. C. Which empowered the Court to "make any amendment or any conse--quential or incidental order that may be just or proper". The conflict was, however, resolved by a Full Bench of the Calcutta High Court in Mehi Singh v. Mangal Khandu. By a majority judgment, the view taken by the Full Bench was that consequential or incidental orders may be orders being the necessary complements to the main order such a directions as to the refund of fines realised from acquitted appellants or on the reversal of acquittals or as to the restoration of compensation under section 250, Cr. P. C. Again, there may be another category of orders though ancillary in character which required more than the support of a criminal Court's inherent jurisdiction and could not be passed without express authority. It was held by their Lordships that the making of an award for compensation would consequently seem to need express authority and as such would not be order consequential or incidental to an order of discharge or acquittal unless the discharging or acquitting Court has aliunde power to make it. It was observed by their Lordships that there was nothing to show that the appellate Court was invested with an authority "to make any order which ought to have been given or made" by the Court below as envisaged by Order XLI, rule 33 of the Code of Civil Procedure, 1908. The same view was reiterated in Notified Area, Kharar v. Karta Ram and another by Mr. Justice Broadway and his Lordship placed reliance on Chedi v. Ram Lal (I L R 46 Al1.80). The position has been impliedly conceded in the amendment to section 544-A of the Code of Criminal Procedure envisaged by section 141 of the. Law Reforms Ordinance XII of 1972, which is to be enforced not late than 1-1-1973. It appears that having appreciated the lacunae in the existing provision, the law-giver accepting the recommendation of the Law Reforms Commission has taken abundant care to remove them in the amended provision wherein most of the points raised by Mr. Salim have been taken due care of. As such the matter has become more or less one of academic interest except, of course, in so far as some individual cases are concerned.
26. The other point which needs consideration, however, is as to whether a power to award compensation could be spelt out from the inherent powers contained in section 561-A of the Code of Criminal Procedure which was introduced by Criminal Procedure Code (Amendment) Act (XVIII of 1923), and, in particular, from the omnibus provision which, inter alla, em--powered the High Court in exercise of its inherent jurisdiction to make such order as may be necessary to secure the ends of justice. Obviously this new provision being subsequent in point of time was not, and, in fact, could not be considered by their Lordships of the Calcutta High Court in the Full Bench case discussed, earlier. The precise point for determination, however, is as toy whether this Court, in exercise of its appellate/inherent powers could supply an omission by the trial Court which was under ac statutory obligation to award a sentence of fine. If the question is answered in the negative then the other alternatives would be Dither to ignore the omission in case the conviction is upheld or to remand the case to the trial Court for passing a fresh order in accordance with law.
Having regard to the phraseology employed in section 544-A of the Criminal Procedure Code, and, in parti--cular, to the expression "the Court while sentencing the accused", the analogous provisions contained in sections 106(3), 353, 525, 545-A(2) and the authorities discussed earlier. I am inclined to think that such an order, at the appellate stage, would be beyond the legitimate scope of the inherent jurisdiction of this Court under section 561-A of the Criminal Procedure Code.
27. There is, however, another aspect of the matter. As stated earlier, in support of his contention Mr. Bhutter relied upon Muhammad Sharif v. Saddar Din and 2 others (1971 Law Notes 202), a recent Supreme Court judgment. In this case, the Sessions Judge con--victed the accused under section 302 read with section 34 of the Pakistan Penal Code but did not award the compensation. In appeal, the High Court altered the conviction to that under sec--tion 304, Part II read with section 34 of the Pakistan Penal Code. None of the Courts, however, awarded any compensation to the deceased under section 544-A of the Criminal Procedure Code. This omission was supplied by the Supreme Court which awarded the compensation with the following observation: - "IV was, however, brought to our notice by the learned counsel for the State that the Courts below failed to take notice of section 544-A of the Criminal Procedure Code which has been added by the West Pakistan Assembly. Under this provision of law, where any person is convicted of an offence involving death, hurt or injury or loss, destruction or theft of property, the Court while sentencing the accused shall, unless for reasons to be recorded, it otherwise directs, award compensation to the heirs of the person killed, the person injured or the person whose property has been injured, lost or destroy--ed, as the case may be, the amount of compensation awarded by the Court under this section shall be regarded as a sentence of fine. It is, therefore, quite clear that this is a mandatory provision of law and the respondents should have been sentenced to fine under it. We would therefore rectify this omission and sentence the respondents to a fine of Rs. 500 each under the above provision of law. This is in addition, to the sentence of three years under section 304, Part II.
The fine will be paid within a week. In default, the respondents shall undergo rigorous imprisonment for three months each. This fine, when realized, will be paid as compensation to the heirs of the deceased."
Although it appears that the point was not elaborately argued before their Lordships having been incidentally raised in the course of arguments in the main appeal yet the judgment of their Lord ships has a binding effect on this as well as any other Courts in the Country. Accordingly we are left with no option but to allow the revision and direct that the appellants whose conviction has been upheld shall pay a sum of Rs. 1,000 each to be equally shared between the heirs of the three deceased persons. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.