MUHAMMAD AFZAL CHEEMA, J.---The two appellants Ghulam Rasul and his brother Nabi Bakhsh were tried along with their father Meeran for the murder of one Ghulam Ali of their village allegedly committed by them in prosecution of their common object on 4-1-69 about Maghrib prayer time, at Chah Jalwala, in the area of Mauza Basti Gaddan, two miles from Police Station Jampur, District Dera Ghazi Khan. Meeran to whom only an exhortation was attributed was given the benefit of doubt and acquitted, while the appellants were convicted under section 302/ 34, P. P. C., vide the impugned judgment dated the 23rd of December 1969, Ghulam Rasul having been awarded the sentence of death while Nabi Bakhsh that of transportation for life. They have appealed against their convictions and sentences, and the case of Ghulam Rasul appellant has also been referred to us under section 374 of the Code of Criminal Procedure for the confirmation of the death sentence.
Both the appeal and the Murder Reference will be disposed of by this judgment.
2. The facts of the prosecution case, as revealed in the initial report Exh. P. B. Made by Khadim Hussain P. W. 13, brother of Ghulam Ali deceased, on the 4th of January 1969, at about 9-30 p.m. At Dora Ghazi Khan before Safdar Hussain, Sub---Inspector of City Police Station Dera Ghazi Khan, which forms shin basis of the F. I. R. At Jampur Police Station the same night at 11-30 p.m. Briefly are that the parties resided ate Chah Jal Wala. At about Maghrib time, Khadim Hussain P. W. 13 and his cousin Ganhwar P. W. 14 were, attracted to Chah Jal Wala close to their residence by a row. On reaching there, they found Ghulam Rasul P. W. 15 maternal uncle of Khadim Hussain complainant and Ghulam Ali deceased, quarrelling with Meeran, father of the appellants, over the turn of irrigation water and were exchanging abuses. Ghulam Ali deceased also happened to be there who was remonstrating with Meeran aforesaid not to complicate. Matters, but the latter was hurling abuses at him also. In the meantime, the two appellants, of whom Ghulam Rasul held a single-barrelled licensed gun and Nabi Bakhsh, who carried a stick, were attracted to the scene.
Seeing them, their father exhorted them to teach a lessors to the deceased and Ghulam Rasul P. W.
Upon this, Ghulam Rasul appellant fired at Ghulam Ali deceased hitting him can the front of the left shoulder. Ghulam Ali fell down. Nabi Bakhsh tried to give a stick blow to Ghulam Rasul P. W., but Ganhwar P. W. Succeeded in snatching the stick from him and gave him a blow with it on the head.
Before Ghulam Rasul could re-load his gun Khadim Hussain flew at him and snatched the gun from his hands. Being so disarmed the three accused ran towards their house. Subsequently, Ghulam Abbas and Ahmad, who were not examined also reached from their village. The deceased was placed on a cot and removed to Jampur Hospital in the first instance, but owing to the non- availability of the doctor, was further taken on .3 bus to Dera Ghazi Khan Civil Hospital and expired there while he was being brought down from the bus.
3. Doctor Muhammad Iqbal, Medical Officer. District Headquarters Hospital, Dera Ghazi Khan, informed the local police about the arrival and expiry of the glee deceases in the hospital vide ruqqa Exh. P. M., on receipt of which. Khan Safdar Khan, Station House Officer, City Police Station, repaired to the hospital finding Khadim Hussain complainant near the dead body of Ghulam- Ali.
He recorded his statement Exh. P. P. And forwarded the same to Police Station Jampur through Foot Constable Purdit Khan. He prepared injury statement Exh. P. M./1 and inquest report Exh. P. M./2 of Ghulam Ali and despatched his dead body to the mortuary for post-mortem examination under the escort of Foot Constable Farid Bakhsh P. W.
6. The report Exh. P. B. Was received by Mr. Hamid Ullah Khan Niazi, Sub-inspector (P. W. 16), S. H. O. Jampur, at 11-30 p.m. The same night on the basis of which he drew up the formal F. I. R. Exh. P. B./1 and left for the spot in the company of Murid Hussain P. W. 8 and Muhammad Hafiz P. W., two respectables of Jampur, reaching there at about 12-30 midnight. Early next morning, he secured blood-stained earth from the spot vide memo. Exh.
P. D. And also picked up from there empty cartridge Exh. P. 9 and live cartridge Exh. P. 10 and secured them under separate memos. Exhs. P. E. And P. F. Respectively. He also secured a pair of shoes Exh. P. 11/1-2 of Meeran accused vide memo. Exh. P. G. On the same day Khadim Hussain P. W.
Produced before him licensed gun Exh. P. 2 of Ghulam Rasul appellant and sota Exh. P.
1. Of Nabi Bakhsh appellant, which were taken into possession vide Memo. Exh. P. W. Respectively. It may be men--tioned in this context that the initial report bore a specific reference of seizure of these two weapons of offence wielded by the appellants, who had been disarmed. According to the prosecution, it was on the 6th of January 1969, that Nazar Hussain P. W. 11 produced all the three accused who were arrested. While in custody, Ghulam Rasul appellant produced licence Exh. P. 12 of his gun Exh: P. 2, which was taken into possession vide Memo. Exh. P. K. Blood-stained lungi Exh. P.
13 of Nabi Bakhsh appellant was also secured vide memo. Exh. P. M. His injury statement Exh. P. N.
Was prepared by the Sub, Inspector and he was also got medically examined. Having com--pleted the investigation, the Sub-Inspector challaned the appellants and their father Meeran.
4. Post-mortem examination of, the dead body of Ghulam Ali was conducted by Dr. Muhammad Iqbal ors the5th of January 1969, at 10 a.m. Vide post-mortem report Exh. P. Q. He found it to be a body of a young stout person, having a gunshot lacerated wound, 4" x 1--", transversely oblique on the front of the left shoulder. The inner end of the wound was deeper. The underlying clavicle bone was also fractured. On internal examination, the doctor found that the fourth and fifth thoracic vertebrae were lacerated with one pellet found stuck up in each. The wall on the upper part of the left chest was lacerated, second and third ribs were fractured, the left pleura was ruptured at two places, left lung was also found lacerated through and through at its apex at two portions. The stomach was healthy and full of semi-digested food. Small intestines were healthy and contained semi-digested food material. Large intestines were healthy and empty. The two pellets were extracted and sent to the police in a sealed bottle. Death, in the opinion of the doctor, had occurred due to shock and haemorrhage as a result of injury No. 1 which was caused by a gunfire from a distance of more than four feet and sufficient to cause death in the ordinary course of nature.
Probable time between injury and death was three hours and that between death and post- mortem about twelve hours.
5. Nabi Bakhsh appellant was examined by Dr. Khurchid Ahmad Khan, Medical Officer, Jampur, on the 6th of January 1969, and vide medico-legal report Exh. P. O. Was found to have sustained a lacerated wound, 2-2/3" x 1/5" x 1/4", on the middle of head, 2J' behind hair margin of forehead. It was a blunt weapon injury caused within a duration of one t6 two days and declared to be simple by Dr. Riaz Hussain Khan, P. W. 2, vide his medico-legal report. Exh. r. B./2, who examined him a month thereafter.
6. At the trial, the prosecution case rested on the testimony of Khadim Hussain P. W. 13, Ganhwar P.
W. 14 and Ghulam Rasul P. W. 15, the evidence of extra-judicial confession available in the testimony of Nazar Hussain P. W. 11, the seizure of stick Exh, P. 1 and gun Exh. P. 2, and their production before the police furnishing corroborative evidence and of course there was the medical evidence. In view of the fact that the recoveries of the cartridges from the spot as well as the production of gun Exh.
P. 2, took place on the same day and the same were simul--taneously despatched to the Expert, no sanctity could be attached A even if a positive report had been received in this regard which appears to have been withheld. As such, these recoveries have no evidentiary value. The learned trial Judge rightly discarded the testimony of Nazar Hussain before whom the accused had allegedly made a clean breast of their guilt in view of the close relationship of this witness with the complainant party. However, the ocular evidence, corroborated by the production of gun Exh. P. 2 which admittedly belonged to Ghulam Rasul appel--lant, supported by medical evidence, was considered good enough to bring home the guilt to the appellants of whom Ghulam Rasul pleaded alibi without leading any evidence in support thereof, and Nabi Bakhsh admitted having accidentally hit the deceased while trying to scare him away as he had not only abused his father but had also given him (Nabi Bakhsh) a stick blow on the head. The position precisely taken up by him may be reproduced below :- "My cultivation was being damaged by some wild animals and in the evening I took my brother's gun which was lying in the house to have a round of the field and to scare away the wild animals.
When I reached in the area of Chah Jal Wala, I saw my father being abused by Ghulam Ali who was standing there along with Ghulam Rasul P. W. I went there with a view to request Ghulam Ali to behave properly and when I made a request to him he abused me and gave a sota blow on my head. He aimed another blow and apprehending a fatal injury I fired the gun in order to scare him away but unfortun--ately it hit him. My brother Ghulam Rasul accused was not there. I and my father remained at the spot till the arrival of the police who took the gun from me and afterwards when Ghulam Rasul accused was brought there we were all arrested."
The appellants and their father Meeran did not produce any evidence in defence.
7. After taking us through the evidence on the record, learned counsel for the appellants has contended firstly that there has been considerable delay in the lodging of the first information report which afforded ample opportunity to the complainant party to prepare an elaborate report after conference and consultation ; secondly that the genesis of the occurrence remained untraced and an unresolved mystery ; thirdly that the prosecution had not been able to produce a single disinterested witness ; and lastly that the plea of Nabi Bakhsh appellant should have been accepted and that it was wrongly discarded by the learned trial Judge.
8. Having considered the contentions in the light of the evidence on the record, we have not been able to find much substance in them. It is a common ground that the dispute q originated over the turn of irrigation water to which none of the parties appears to have established his legitimate claim beyond reasonable doubt as admittedly it was not the turn of any one of them but was either that of Mahmood, who lived at Chah Tandewala or of Manjha, who resided at Chah Jal Wala.
In answer to a Court-question, however, Ghulam Rasul P. W. 15 admitted that he had irrigated his field at that time though he denied the suggestion that he had diverted water to his own land.
Meeran was irrigating his field and took exception to this diversion saying that he had borrowed it from Manjha. Sur--prisingly enough, neither Manjha nor Mahmood was examined either by the prosecution or by the defence. As such the claim of either party to the turn of water remained rather doubtful and unestablished and the plea of defence cannot be conceded to the appellants.
Furthermore, although the prosecution had tried to show some previous bad blood between the parties, as alleged by Khadim Hussain P. W. In the initial report and later deposed to at the trial that the relations between the two parties were strained for the reason that Meeran was a professional thief, yet no tangible proof to establish this is forthcoming. Meeran was a seventy years old man and Khadim Hussairs P. W. Had to admit that no case had been registered against him during his (P. W.'s) life time. He had further stated that the deceased had "absolutely no enmity" with the appellants, and a sudden quarrel between Ghulam Rasul P. W. And Meeran accused took an ugly turn resulting in the unfortunate death of Chulam Ali who was employed as a Booking Clerk in Government Transport Service at Jampur, at the hands of Ghulam Rasul appellant, who was a Field Assistant in the Agricultural Department posted twelve miles away from Jampur. Although Ghulam Rasul pleaded absence from the spot, he led no evidence in support of this plea. The production of the gun by Khadim Hussain before the police which had been snatched by him from Ghulam Rasul appellant while he was trying to reload it after having fired at fatal shat at the deceased is a very significant circumstance which not only establishes the presence of Ghulam Rasul at the spot who admitted his ownership of the licensed gun and produced before the police licence Exh. P. 12 in this regard, but also furnishes strong corroboration to the ocular testimony of Khadim Hussain, brother of the deceased, Ganhwar, his cousin, and Ghulam Rasul, his maternal uncle, which cannot otherwise be discarded on the sole ground of their relationship with the deceased. The stamp of injury on the person of Nabi -Bakhsh specifically mentioned in the initial report lends further support to the prosecution case. The alternative version offered by him cannot be believed. The statement of Nabi Bakhsh that after the occurrence he and his father remained at the spot till the arrival of the police who took the gun from him, is simply absurd having no basis on the record. The so-called delay in the lodging of the report is neither material nor remains unexplained in the circumstances. The deceased having been seriously injured, the foremost anxiety of his relations would naturally be to remove him to the hospital as early as possible. The pretext of the non- availability of the doctor at Jampur, on which he was taken onwards to Dera Ghazi Khan does not appear to have been challenged even by a sugges--tion to any of the prosecution witnesses. It may have taken tome time to board a bus and reach Dera Ghazi Khan at a distance of thirty miles.
The moment they reached the D. H. Q. Hospital, Dora Ghazi Khan, Ghulam Ali expired. The doctor immediately sent information to the Sub-Inspector, City Police Station, Dera Ghazi Khan, who arrived at the spot and recorded the statement of Khadim. Hussain P. W. At 9-30 p.m. We are, therefore, of the view that the fact that no steps were taken to report the matter immediately at Jampur Police Station has been adequately explained as all the near relations of the deceased accompanied him to Dora Ghazi Khan.
Having considered all the pros and cons of the matter, we are convinced that the offence had been rightly brought home to the appellants.
9. This brings us to the question of sentence. We have already held that there was no previous bad blood between the parties and members from both sides were attracted to the spot on hearing loud and heated altercation between Meeran, the acquitted accused, and Ghulam Rasul P. W.
When according to the prosecution, the deceased tried to remonstrate with the former, and according to the defence he abused him. Meera was a seventy years old man and once we come to the conclusion that he had been abused by the deceased which possibility cannot be excluded in the circumstances, this would have been sufficient to make the blood of his sons boil when Ghulam Rasul appellant fired the fatal shot at the deceased. In the circumstances, there--fore, we are inclined to think that such a demonstration of filial loyalty, howsoever rash and uncalled for would at least justify the award of a lesser penalty of transportation for life, particular when according to the prosecution the appellants had acted under the influence of their father and in fact on his exhortation, who of course was given the benefit of doubt. Nabi Bakhsh shared a common intention with his brother Ghulam Rasul in the circumstances of the case as could be spelt out from the fact that both being within an ear shot went to the spot having armed themselves on hearing the altercation between their father on the one hand and Ghulam Rasul P.
W. On the other. Both of them used their respective weapons, of course Ghulam Rasul appellant effectively 1 while Nabi Bakhsh unsuccessfully. In a situation like this, an intention could be formed and shared even at the spur of the moment. Accordingly, Nabi Bakhsh too was vicariously liable as rightly held by the learned trial Judge, discarding his rather inapt plea of self-defence.
10. The upshot of the discussion, therefore, is that while maintaining the convictions of the two appellants, we commute the death sentence of Ghulam Rasul to that of transportation for life. The appeal partly succeeds to this extent. The sentence of death awarded to Ghulam Rasul is not confirmed.