Mughal, Sheru, Sabaz A.I, Wahid Bakhsh, Khawand Bakhsh, Bhoora and Piran, convicts, have preferred this appeal against their conviction and sentence recorded by a judgment of Ch. Abdul Majeed, Sessions Judge, Rajanpur, dated 16-2-1985. The appellants were convicted and sentenced as follows:---
(i) Mughal, Wahid Bakhsh; Sabaz A.I and Sheru under section 302 read with S.34 of the P.P.C. They were sentenced to imprisonment for life each, a fine of Rs.2000 each or in default of payment of fine to suffer S.I. For three months each. They were also directed to pay compensation amounting to Rs. 2000 to the legal heirs of Muhammad Bakhsh (deceased) or in default to undergo S.I. For three months each.
(ii) Wahid Bakhsh, Khawand Bakhsh, Piran and Bhoora under section 307 read with section 34 of the P.P.C. On two counts and sentenced to suffer R.I. For four years each on two counts and a fine of Rs.
1000 each or in default to undergo S.I. For two months each on two counts. They were also directed to pay compensation of Rs.1000 each on two counts to Nasir and Mauj A.I, injured PWs under section 544-A Cr.P.C. Or in default to undergo S.I. For two months each on two counts.
(iii) The sentence under section 307 read with Section 34 of the P.P.C. Of Wahid Bakhsh, convict, was directed to run concurrently with the sentence of life imprisonment and also the sentences of Khawand Bakhsh, Piran and Bhoora were directed to run concurrently.
(iv) Khawand Bakhsh, Piran and Bhoora were held entitled to the benefit of Section 382-B of the Code of Criminal Procedure and "the period already spent by them in jail as under-trial would be counted towards their substantive sentence."
2. According to the prosecution the incident resulting in the death of Muhammad Bakhsh and injuries to Nasir and Mauj A.I, P.Ws. Occurred at about 12-00 noon on 4-4-1981 at a place in the river-bed m the area of khairpur Bambli Dakhli Kacha Gadi within the limits of P.S. Rojhan. It was reported at the police station by Sawan, who appeared at the trial as PW-6, at 4.00 P.M. First Information Report was recorded by Muhammad Hassan, S.I. Who appeared at the trial as PW-9.
3. The prosecution case as laid in the F.I.R. (Ex.PL) was as follows: On the day of the incident, Sawan was on his way to Basti llam Din Police Station Bhung district Rahimyar Khan, which was on the other side of the river Indus. Muhammad Bakhsh deceased, Nasir, Mauj A.I, A.I Murad and Sher Muhammad alias Sheru, P.Ws. Were also going to that side of the river for bringing wood for their wells. They all crossed the river by the same boat. When they reached the place of incident in the river bed at about 12-00 noon, the appellants emerged from bushes; of them Mughal was armed with a gun and the remaining appellants carried Sotas. Mughal raised a Lalkara saying that they will take revenge from Muhammad Bakhsh for the murder. Muhammad Bakhsh started running but the appellants over took him. Wahid Bakhsh, Sabaz A.I and Sheru gave one Soti blow each to Muhammad Bakhsh. Nasir, P.W. Went forward to the help of Muhammad Bakhsh and was given a Soti blow by Wahid Bakhsh, appellant. In the meantime, Mughal, appellant fired with his gun hitting Muhammad Bakhsh deceased on his face. Muhammad Bakhsh fell down. Mauj A.I, P.W. Went forward and Khawand Bakhsh, appellant, gave him Soti blow on his head; Piran and Bhoora, appellants also caused him injuries with Soties. Muhammad Bakhsh died at the spot. The appellants, Mughal and Wahid Bakhsh threw his dead body in the river water near the bank. The appellants then ran away. A.I Murad took Nasir and Mauj A.I, P.Ws. To the Civil Hospital.
4. The F.I.R. Also gave the motive of the incident; it was that about 10 years before the incident, Qamru son of Lal had abducted Mst. Bhirawan wife of Masuri and two years later, Qamru and Mst.
Bhirawan were killed. For their murder, Masuri, alongwith others, was tried and sentenced to life imprisonment. Mughal and Wahid Bakhsh, accused persons, who were the relatives of Qamru, suspected that Muhammad Bakhsh (deceased) had a hand in the murder of Qamru and Mst.
Bhirawm
5. After recording the F.I.R., Muhammad Hassan, S.I. Reached the spot, prepared the injury statement Ex. PM and inquest report Ex. PM of Muhammad Bakhsh (deceased) and despatched it to the mortuary under the escort of Pir Bakhsh, constable. He took into possession blood stained earth from the spot vide memo. Ex. PE and made it into a parcel. On 5-4-1981, Pir Bakhsh, constable produced before him the last worn clothes of the deceased and he took them into possession vide memo Ex. PD.
6. The S.I. Arrested Mughal, Khawand and Bhoora, accused, on 7-4-1981; he arrested Sheru, Wahid Bakhsh and Piran, accused on 14-4-1981. At the time of his arrest Sheru, accused produced Soti P-5 and the S.I. Took it into possession vide memo Ex. PG; Wahid Bakhsh produced Soti P-8 and the S.I.
Took it into possession vide memo. Ex. PK; Piran produced Lathi P-6 and the S.I. Took it into possession vide memo Ex PH; Khawand Bakhsh, accused led to the recovery of Lathi P-4 from his Bhana and the S.I. Took it into possession vide memo Ex. PF; Mughal, accused led to a place at the river bank and produced a gun which lay hidden under the sand and the S.I. Took it into possession vide memo Ex. PJ.
7. Dr. Shabbir Hussain, who appeared at the trial as PW-1, had examined Nasir Ahmad and Mauj A.I, P.Ws. For their injuries on 5-4-1981. On the person of Nasir Ahmad, P.W. He found only one injury, namely:-- A lacerated wound 1/2 x 1/4 x bone deep on the posterior aspect of the left fore-arm (on the middle part). The fore-arm was swollen as a whole but more marked on the middle part (8" and 4',). The bone crepitus was present. The ulna bone was fractured at the junction of upper third and the middle third. The shirt was blood-stained.
The injury was declared grievous and had been caused by blunt weapon within the duration of 24 to 30 hours. Ex. PA is a carbon copy of medico-legal-report and Ex.PA/1 is the diagram of the receipt of the injury.
8. On the person of Mauj A.I P.W., the doctor had found the following injuries:--
(1) A lacerated wound 1--" and 1/8" x skin deep on the interior part of the head, placed obliquely, left to the mid-tine. The area all round was swollen 2-- " x 2".
(2) An abraded area 1--" x --" on the back of right shoulder. The abraded area was swollen 3" x 2-- ".
(3) A contused swelling 4" x 1" on the left scapular region placed obliquely.
(4) A contused swelling 4" x 1-- " on the posterior aspect of the left chest middle part, placed obliquely.
(5) A contused swelling 5-- " x 3" on the lower most part of the left chest and the upper left lumbar region. The patient complained of severe pain over the renal area. He was passing blood in urine since the injury.
(6) An abraded area 1" x --" on the anterior left iliac spine area.
(7) A contused swelling 3-- " x 1" on the outer aspect of the left deltoid region.
All the injuries had been caused by blunt weapon; injury No.1 was kept under observation and injury No.5 was declared grievous; all the other injuries were simple and had been caused within the duration of 24 to 30 hours. Injury No. 1 also, was declared simple on "clinical grounds". Ex. PB is the carbon copy of the medico-legal-report and Ex. PB/1 is the diagram showing the receipt of injuries.
Dr. Shabbir Hussain said that he had examined Nasir and Mauj A.I,.P.Ws. As private patients.
8. Dr. Shabbir Hussain (PW-1) had also conducted the autopsy on the dead body of Muhammad Bakhsh (deceased). It was the dead body of a young male, well built and stout person. Rigor mortis was present; post mortem stainings were present on the back; the decomposition of the body was also present in the early stages. The dead body was smeared with sand and had the following injuries on it:--
(1) A lacerated wound 1-- " x 1/8" x scalp depth on the right side of the head 3" above the right eye- brew, placed obliquely.
(2) A lacerated wound 2" x 1/4" x scalp deep on the top of the head right to mid-line.
(3) A lacerated wound --" x 1/8" x scalp deep on the top of the head --" in front of the injury No.2.
(4). A lacerated wound 2-- " x -- " x bone deep on the top of the head on the midline placed obliquely.
(5). A fire-arm wound 2" x --" x bone deep on front of the left side of the fore-head and the eye- brew, outer part. The under-lying bone was fractured.
(6). A fire-arm wound --" x --" x bone deep on front of the left cheek just below the left eye going into the maxillary bone.
(7). A fire-arm wound --" x --" on the front of left cheek near the ale of the nose (going deep into the bone. The under-lying bone was depressed and fractured).
(8). A fire-arm wound --" x --" x bone deep on the left nostril of the nose.
(9). A fire-arm wound --" x --" x skin deep (as it could be ascertained) on front of the chin and the lower lip on the mid-line. The wound was black.
(10). A fire-arm wound --" x --" x bone deep on front of the chin on the mid-line.
The doctor had found the scalp under injuries Nos. 1, 2, 3, and 4 injured; the skull was fractured under injuries Nos.1 and 4; front-parietal bone and skull were also fractured under injury No.5; it was a depressed fracture. The maxillary bone was found fractured under injury No. 7. Membranes of the brain were covered with blood. All other organs of the body were healthy.
9. In the opinion of the doctor, injuries Nos. 1, 2, 3 and 4 had been caused by blunt weapon and injuries Nos.5 to 10 had been caused by fire-arm. The injuries Nos. 1, 4, 5 and 7 were grievous; Injuries Nos, 1 and 4 were dangerous to life and were sufficient to cause death in the ordinary course of nature. The death was due to shock and haemorrhage. Time between the injuries and death was immediate and probable time between death and post-mortem examination was 24 to 36 hours. In answer to a question in cross-examination, Dr. Shabbir Hussain said that Muhammad Bakhsh had died immediately after receiving injuries Nos. 1 and 4. Ex. PC is the carbon copy of the post-mortem examination report and Ex. PC/1 is the diagram of the seat of injuries.
10. At the trial, the prosecution called nine witnesses including Dr. Shabbir Hussain (PW-1)and Muhammad Hassan, S.1. (PW-9) in support of its case.
11. Pir Bakhsh, constable (PW-2) had escorted the dead body of Muhammad Bakhsh from the place of incident to the mortuary in Rojhan on 4-4-1981. According to him, the S.I. Had handed over the dead body to him in the area of Wah Machka at the bank of river Indus and he had reached the mortuary between 3 and 5 P.M. On the next day. He further stated that the dead body had been handed over to him at 7-0 P.M on 4-4-1981 and not on 5-4-1981.
12. Bakhsha (PW-3) and Ahmad Bakhsh (PW-4), the latter being a brother of deceased Muhammad Bakhsh, had identified the dead body of Muhammad Bakhsh at the time of post-mortem examination. Ahmad Bakhsh had also joined the investigation and had witnessed the taking into possession of blood-stained earth from the place of the incident vide memo Ex. PE.
13. In cross-examination he said that he was present in his house when the S.I. Informed him at 12- 00 noon on the day of incident that his brother, Muhammad Bakhsh, had been killed. The S.I. Took him along to the place of incident. When they arrived at the spot, Sawan, Nasir and Maul A.I, P.Ws.
Were already present. They stayed at the spot till the following day till 9-00 A.M. The Police also stayed at the spot during the night.
14. Faqir Bakhsh (PW-.5), a resident of Mauza Wah Machka tehsil Rojhan had joined the investigation. He stated that Khawand Bakhsh had led to the recovery of Lathi P-4 from his Bhana situate in Rangpur. The S.I. Took it into possession vide memo Ex. PF. Sheru produced Danda P-5 with iron pointed rod and the S.I. Took it-into possession vide memo Ex. PG. At the time of his arrest, Piran, accused produced Soti with iron rod and the S.I. Took it into possession vide memo Ex. PH.
Mughal, accused, he further stated, had led to the bushes on the river bank and had produced gun P-7. The S.I. Took it into possession vide-t memo Ex. PJ. Wahid Bakhsh had produced Lathi P-8 vide memo. Ex. PK.
15. The eye-witness account of the incident was furnished by the testimony of Sawan (PW-6), Nasir (PW-7) and Sher Muhammad alias Sher Baig (PW-8).
16. The substance of the testimony of Sawan (PW-6) is as follows. On the day of the incident at about noon time, he alongwith Sher Baig, Mauj A.I, Nasir, A.I Murad and Muhammad Bakhsh, was on his way to village Jamal Din Wali. He met these persons, while boarding the boat for crossing the river. On his inquiry, Muhammad Bakhsh (deceased) and his companions had told him that they were going to fetch wood for the construction of well. After crossing the river, they proceeded towards east; when they had covered a distance of about a mile from the river bank, Mughal, armed with gun, Sheru, Sabaz A.I, Wahdul Piran, Bhoora and Khawand Bakhsh, appellants, armed with sticks emerged from the jungle. Mughal appellant raised a Lalkara saying that they would take revenge from Muhammad Bakhsh (deceased). Muhammad Bakhsh started running for life. Nasir P.W. Also ran with him. Wahid Bakhsh, Sabaz A.I and Sheru gave one blow each with their Sotas on the head of Muhammad Bakhsh (deceased). Muhammad Bakhsh deceased snatched the Sota of Sabaz A.I accused and gave one stick blow each to Sabaz A.I, Sheru and Wahid Bakhsh accused.
He then corrected himself and said that he did not remember the number of blows given by Muhammad Bakhsh to the said appellants. Then Khawand, accused, gave a stick blow to Nasir, P.W. Hitting him on his elbow, Mughal, appellant, fired with his gun hitting the deceased on his mouth, eyes and head. Muhammad Bakhsh fell down and died. Then Bhoora and Piran appellants gave one blow each to Mauj A.I, P.W Piran and Bhoora, appellants also caused injuries to Nasir, P.W.
The appellants then ran away with their weapons; they had tried to throw the dead body of Muhammad Bakhsh in the river but as they threw it, one arm and back side of the head was in the water and the rest of the body was outside the water.
17. Sawan, P.W. Further stated that he left Nasir, Mauj A.I, A.I Murad and Sher Baig with the dead body and himself went to the Police Station and lodged the F.I.R. Ex., PL.
18. As to motive, Sawan, P.W. Stated that Mst. Bhirawan was the wife of Masuri, a cousin of Muhammad Bakhsh (deceased). She was abducted by Qamru. Masuri, Kalu and Sharif killed Mst.
Bhirawan and Oamru. Kalu and Sharif were also the relatives of Muhammad Bakhsh (deceased).
They were all convicted.
19. The appellants according to Sawan, P.W., are related inter se. Piran, Bhoora, appellants are cousins; Sabaz A.I, appellant is uncle of Sheru, Wahid Bakhsh and Khawand Bakhsh appellants and Mughal appellant is nephew of Sabaz A.I, appellant. He is also a cousin of the remaining appellants.
20. In cross-examination, he stated that Khan Muhammad was father of Masuri; He did not know the father's name of Khan Muhammad as also the Father's name of Muhammad Bakhsh (deceased).
21. The police, he further stated, had reached the spot before sun-set on the day of incident. --- Writings were made by the police on the spot" and the dead body had remained at the spot for the night. The S.I. Had reached the spot in the morning following the day of incident. It was then that the dead body was despatched to the mortuary. He was confronted with the F.I.R. Where he had not said that the deceased had snatched the stick from Sabaz A.I and had caused stick lows to three of the appellants. According to him, Nasir and Mauj A.I, P.Ws. Had not reached the Police Station after him. He did not remember if Nasir and Mauj A.I, P.Ws. Were at the spot when he returned to the spot from the Police station. It was suggested to him that Muhammad Bakhsh (deceased) was a thief and had, 2/3 months before the incident, attempted to commit theft in the house of the appellants and had been given beating by them and that it was to avenge that beating that Muhammad Bakshsh (deceased), Nasir, Mauj A.I, P.Ws. Had attacked the appellants, Mughal, Khawand Bakhsh, Sabaz A.I and Bhoora and it has thus that Muhammad Bakhsh (deceased), Nasir and Mauj A.I, P.Ws. Were injured by the said appellants in the exercise of their right of self-defence; he denied this suggestion.
22. Nasir (PW-7) and Sher (PW-8) gave a similar account of the incident with the following difference: according to Nasir, P.W. He had intervened to save Muhammad Bakhsh (deceased) and was given a stick blow by Wahid Bakhsh, appellant on his arm fracturing it, he did not say anything in his examination-in---chief about the injuries of the appellants. In answer to a question in cross- --examination, he said that Muhammad Bakhsh (deceased) had injured Sabaz A.I, appellant. He denied that he had caused any injury to any of the appellants, or that he and his companions had attacked the appellants. Sher Muhammad alias Sher Baig, P.W. Said that Muhammad Bakhsh had snatched the stick of Sabaz A.I had given blows with it to Sabaz A.I, Mughal and Wahid Bakhsh, appellants, it then that Mughal had fired with his gun hitting Muhammad Bakhsh deceased) on his face. According to both Nasir and Sher Muhammad PWs., Bhoora, appellant had not caused any injury to anybody.
23. In their statements under section 342 of the Code of Criminal Procedure, Sheru, Wahid Bakhsh and Piran, appellants, denied their participation in the incident. As regards Mughal, Sabaz A.I, Khawand Bakhsh and Bhoora, appellants, they denied that they had attacked the deceased and the P.Ws. In the manner stated by Sawan, Nasir and Sher Muhammad alias Sher Baig, P.Ws. Or that they had done so on account of the suspicion that Muhammad Bakhsh (deceased) was one of the murderers of Qamru. According to Mughal, Sabaz A.I, Khawand Bakhsh and Bhoora, appellants, the incident occurred in the following manner. Two months before the incident, Muhammad Bakhsh (deceased) was seen near the Basti of the appellants in suspicious circumstances. He was beaten by Mughal and his other relatives: he was then produced before the Lumberdar for being handed over to the Police. The Lumberdar, however, released him on the following day. On the day of the incident, Mughal, Bhoora, Khawand Bakhsh and Sabaz A.I appellants were going to their houses after having condoled the death of one Hakim, resident of Mauza Kin, when Muhammad Bakhsh (deceased) armed with gun and Mauj A.I and Nasir armed with sticks, attacked them and caused them injuries. Acting in self-defence, they caused injuries to Muhammad Bakhsh, Nasir and Mauj A.I. They then went to Police Post Bangla Ichha but the Police did not register the case; instead they were directed to go to Civil Hospital, Sadiqabad.
24. Mughal produced the medico-legal report of his injuries Ex. DA, Khawand Bakhsh produced the medico-legal-report Ex. DB, Bhoora produced the medico-legal-report Ex. DC and Sabaz A.I produced the medico-legal-report Ex. DD.
25. The appellants examined three witnesses in their defence. They are Suhbat Khan (DW-1), Dr. Abdul Wahab S.M.O. THO/Hospital Sadiqabad (DW-2) and Gul Muhammad (DW-3).
26. Suhbat Khan (DW-1) testified as follows: About two years before 4-12--1984 (that being the date of his statement) they had assembled in Darbar Yar Khan on being asked to 'do so by Pir Jeewan Shah, who was Pir of both the parties. He, Sheikh Tahir, Darlhall Khan and Faiz Muhammad were required to decide the matter between the parties. Mauj A.I and Nasir, P.Ws. Admitted before them that they and Muhammad Bakhsh (deceased) had attacked the appellants and in the ensuing fight Muhammad Bakhsh was killed. Accordingly, it was decided that the P.Ws. Would make statements accordingly in the Sessions Court. They also decided that as the complianant-party were the aggressors, they were not entitled to compensation. The complainant-party did not accept the decision. Gul Muhammad (DW-3) stated that a day before the present incident, Khairat ceremony of his brother, Hakim, was held. Mughal and his co-accused with their families had attended the Khairat. They had stayed in the house for the night and had left in the morning. He learnt in the evening of the day of incident that when the appellants had left the house of Hakim, Muhammad Bakhsh was killed.
27. Dr. Abdul Wahab (DW-2) had examined Mughal, Khawand Bakhsh, Bhoora and Sabaz A.I, appellants, for their injuries on 4-4-1981.
28. On the person of Mughal, appellant, he had found the following injuries:-
1. A contusion 3" x 1" having a contused wound 2/3" x 1/6" x scalp deep on the left side of head 3 above the left ear.
2. A contusion 2" x 1" on the back of head.
3. A contusion 3" x 1" on the left fore-arm below the elbow and forearm swollen tender and movements restricted.
4. Two contusions 5" x 1" on the back of right thigh.
5. A contusion 4" x 1" on the back of right shoulder.
6. A contusion 5" x 1" on the back side of left shoulder.
7. A contusion 3" x 1" on the back and right side of chest loser part.
The injuries had been caused by blunt weapon; of them injuries Nos. 1, 2, 3 and 7 were kept under observation and the rest were declared simple. Probable time between the injuries and the medical examination was 6 to 9 hours. On receipt of X-ray reports, injuries Nos. 1, 2, 3 and 7 were also declared simple. Ex. D A is the medico-legal-report of the injuries.
29. On the person of Khawand Bakhsh, appellant he found the following injuries:--
(1) A contused wound 2" x 1/4" x scalp deep on the top of head.
(2) A contusion 2" x 1" on the left forearm.
(3) A contusion 2" x 1" on the left leg.
While injuries Nos.1 and 2 were kept under observation injury No.3 was declared simple. All the injuries had been caused by blunt weapon, within the duration of 6 to 9 hours. Later injuries, Nos.1 and 2 were also declared simple. Ex. DB is the medico-legal-report of the injuries.
30. On the person of Bhoora, there were the following two injuries, namely:-
1. A contusion 3" x 1" on the back of right hand. Hand swollen and tender.
2. A contusion 3" x 1" on the right elbow. Elbow swollen and tender.
The injuries had been caused with blunt weapon within the duration of 6 to 9 hours. They were kept under observation and on receipt of X-ray report, injury No.1 was declared grievous and injury No.2 simple. Ex.DC is the copy of his medico-legal-report relating to the injuries of Bhoora.
31. Sabaz A.I, appellant had the following injuries on his person:--
1. A contusion 2" x 1" on the back and right side of head.
2. A contusion 2" x 1" on the right side of neck. Neck swollen.
3. A contusion 2" x 1" on the right side of face.
4. A contusion 4" x 1" on the right shoulder.
5. A contusion 4" x 1" on the back and right shoulder.
All the injuries were caused by blunt weapon, within a duration of 6 to 9 hours. They were kept under observation. Vide X-ray reports, a fracture was seen under injuries Nos.2 and 3 and they were declared grievous. Injuries Nos.1, 4 and 5 were found simple. Ex.DD is the copy of the medico-legal- report of his injuries.
32. The doctor said that Sabaz A.I was unconscious. His temperature was 69--3. His pulse was 60 /MM and BP 100/60.
33. The above injured appellants had been examined and then admitted in the hospital. Later, on 7-4-1981, Sabaz A.I, appellant, was referred to B.V. Hospital, Bahawalpur for treatment. Bhoora, Mughal and Khawand Bakhsh, appellants were discharged on 7-4-1981. So far as he remembered, they had been taken away by the police from the hospital.
34. After giving a resume of the evidence, the learned Sessions Judge noticed the contention that it "had not been mentioned in the evidence as to what actual relation Muhammad Bakhsh deceased had with Masuri and in the absence of proof of such definite relation, it could not be said that Masuri was actually related to Muhammad Bakhsh deceased" and observed that the mere fact that the P.Ws. Had stated that Masuri was related to Muhammad Bakhsh was sufficient to prove his relationship with Muhammad Bakhsh (deceased) and therefore, the motive as set up by the prosecution stood proved beyond any reasonable doubt from the statements of Sawan and Nasir, P.Ws. The learned Sessions Judge was, however, of the view that the recoveries of the weapons of offence were of no avail to the prosecution. As to the ocular evidence of Sawan, Nasir and Sher Muhammad alias Sher Baig and the defence version of the appellants, Mughal, Khawand Bakhsh, Sabaz A.I and Bhoora, the learned Sessions Judge was of the view that the complainant-party had no motive to attack the appellants "but the motive was to the accused-party as has been held by me above." The statement of Suhbat Khan, D.W. 1 was of no help to the appellants because he was not an eye--witness; similarly, the evidence of Gul Muhammad, D.W. 2 was also of no avail to the appellants because he had not witnessed the incident. The learned Sessions Judge then proceeded to observe that "the prosecution version is more plausible and more fits in the circumstances of the case. Accordingly, it is held that the accused party was the aggressor. They way-laid the complainant-party and killed Muhammad Bakhsh and injured Nasir and Mauj A.I."
35. In view of the learned Sessions Judge, however, as sticks are not deadly weapons, Section 148 of the P.P.C. Was not attracted.
36. Now the findings of the learned Sessions Judge appear to suffer from an apparent inconsistency. 1t is that though according to the learned Sessions Judge, the appellants had way- laid the complainant party and killed Muhammad Bakhsh and inured Naseer and Mauj A.I, yet he convicted Mughal, Wahid Bakhsh, Sabaz A.I and Sheru, appellants, only under Section 302 read with Section 34 of the P.P.C., on the ground that they had allegedly caused injuries to Muhammad Bakhsh deceased and did not hold the remaining appellants vicariously liable for the murder of Muhammad Bakhsh deceased. The inference, according to the learned counsel for the appellants, is that despite his finding that the appellants had way-laid Muhammad Bakhsh deceased and Mauj A.I and Naseer PWs, the learned Sessions Judge was not sure that the accused persons were members of an unlawful assembly or that the common object of the alleged unlawful assembly was to cause the death of Muhammad Bakhsh.
37. What moved the appellants to join together to take the life of Muhammad Bakhsh deceased, according to the F.I.R., was that about 10 years ago, Qamru, a relative of the appellants, had abducted Mst. Bhirawan wife of Masuri and two years later, Qamru and Mst. Bhirawan were killed by Masuri and two others and that the appellants who are the relatives of Oamru deceased suspected that Muhammad Bakhsh deceased had a hand in the murder of Qamru and Mst.
Bhirawan. The version of the alleged motive, which wasgiven by Sawan P.W. At the trial was different version. According to Sawan, Mst. Bhirawan was abducted by Qamru; she was the wife of Masuri a cousin of Muhammad Bakhsh deceased. She was then murdered by her husband Masuri and two others named Kaloo and Sharif. Masuri was a cousin of Muhammad Bakhsh deceased and Kaloo and Sheroo were relatives of Muhammad Bakhsh deceased. Masuri was sentenced to life imprisonment for the murder. Naseer PW said that Masuri had committed the murder of his wife and Qamru and that Qamru was related to the appellants and Muhammad Bakhsh deceased was related to Masuri. Then, even if the motive was that the appellants were relatives of Qamru deceased and they were moved to take the life of Muhammad Bakhsh deceased because Muhammad Bakhsh deceased was related to Masuri, it lay upon the prosecution to prove that the appellants were so closely related to Qamru as to have nourished the grudge of his murder all those years. In my view, it was not sufficient that Sawan and Naseer P.Ws. Had said that the appellants were related to Qamru; that being a question of fact had to be proved like any other fact. As it was, Sawan PW who did not know the father's name of Muhammad Bakhsh deceased; as to Masuri, he did not go beyond the father's name of Masuri. According to him Masuri's father's name was Khan Muhammad but he did not know the father's name of Khan Muhammad. Naseer PW did not know the father's name of any of the appellants; he also did not know Qamru's father's name or the name of his brothers. Though the appellants admitted their inter se relationship, yet it was not specifically put to them that they were related to Qamru. In this state of evidence and in view of the fact that Sawan and Naseer PWs. Gave a different version of the motive from the one given in the F.I.R., I do not think it was safe to hold that the appellants had been moved by a common motive and that common motive was to take the life of Muhammad Bakhsh deceased on account of his alleged hand in the murder of Qamru and Mst. Bhirawan or on account of the alleged relationship of Qamru with the appellants.
38. Apart from the motive evidence being not trust worthy, the evidence of Sawan, Naseer and Sher Muhammad PWs otherwise leaves one with the impression that the incident had not occurred in the manner stated by them. It is proved on the record that four of the appellants named, Mughal, Bhoora, Ahmad Bakhsh and Sabaz A.I had suffered injuries during the course of the incident. Those injuries found no mention whatsoever in the F.I.R. Sawan and Sher Muhammad PWs realized this flaw in the prosecution case and they tried to explain those injuries in their statements at the trial but their explanation appears to have made the manner in which, according to the prosecution, the incident occurred, all the more doubtful. According to Sawan PW. After Muhammad Bakhsh deceased had been given injuries by Wahid Bakhsh, Sabaz Ail and Sheru, Muhammad Bakhsh deceased had been able to 'snatch the Sota of Sabaz A.I appellant and caused injuries with it to Sabaz A.I, Sheru and Wahid Bakhsh appellants. Sher Muhammad P.W. Did say that Muhammad Bakhsh had caused injuries with Sabaz A.I's stick but then according to him, Muhammad Bakhsh had caused injuries to Sabaz A.I, Mughal and Wahid Bakhsh appellants. In this connection, it is note worthy that though according to Sawan and Sher Muhammad PWs, Wahid Bakhsh appellant had suffered an injury at the hand of Muhammad Bakhsh deceased, yet he had no injury on his person.
39. Thus, according to Sawan PW, Mughal did not suffer any injury; m fact he had suffered seven injuries. According to Swan PW, Wahid Bakhsh and Sheru had received injuries; in fact they had received none. Sawan had no explanation to offer for the injuries of Mughal, Bhoora and Khawand Bakhsh appellants and Sher Muhammad PW had no explanation to offer for the injury of Bhoora and Khawand Bakhsh appellants.
40. Naseer PW did not mention the injuries of the appellants in examination-in-chief; in cross- examination, he said only this that Muhammad Bakhsh had caused injuries to Sabaz A.I appellant.
41. It should be mentioned here that apart from the fact that the statements of Sawan, Naseer and Sher Muhammad PWs that Muhammad Bakhsh deceased had snatched the Sota of Sabaz A.I and caused injuries with it to the appellants, Sabaz A.I, Sheru, Mughal and Wahid Bakhsh, was a clear improvement upon the prosecution case as laid in the F.I.R. And this part of their testimony is not worthy of belief because it was incompatible with medical evidence. As has been seen above, the injuries which proved fatal were injuries Nos. 1 and 4, both being lacerated wounds on the head. The doctor said that Muhammad Bakhsh had died immediately after receiving those injuries. If that be so, and there is no reason to hold otherwise, then there was hardly any question of Muhammad Bakhsh deceased having snatched the Sota of Sabaz A.I and having wielded it so effectively as to cause injuries to as many as four appellants. The injuries suffered by them were as many as 17 in number and it is extremely hard to believe that after having received injuries Nos. 1 and 4 Muhammad Bakhsh deceased had not only been able to snatch the Sota from Sabaz A.I but to cause so many injuries to the above, named appellants.
42. The testimony of Sawan, Nasir and Sher Aammad PWs was also inconsistent as to the injuries caused by each of the appellants, Wahid Bakhsh, Khawand Bakhsh, Bhoora and Piran. According to Nasir and Sher Muhammad PWs, the only injury suffered by Nasir was given by Wahid Bakhsh appellant. According to Sawan PW, it was Khawand Bakhsh appellant who had caused injuries to Nasir; according to him, Bhoora and Peeran had also caused injuries to Naseer PW. This was obviously untrue because Naseer had suffered only one injury. Then Nasir and Sher Muhammad PWs said that Khawand Bakhsh had caused injuries to Mauj A.I. According to Nasir and Sher Muhammad PWs, Bhoora did not cause any injury to any body, but according to Nasir PW, Piran had given a blow to Mauj A.I. Sher Muhammad PW, however, said that Piran appellant did not cause any blow to any body.
43. On the Lalkara, with which the appellants allegedly launched the attack also, the eye-witnesses namely Sawan, Nasir and Sher Muhammad contradicted each other. As has been stated above, according to the F.I.R., Mughal had shouted the Lalkara that they would take revenge for the murder. In the witness---box, Sawan PW said that Mughal's Lalkara was that they would take revenge for the murder but according to Nasir, Mughal had said that they would beat Muhammad Bakhsh and according to Sher Muhammad PW, Mughal had exhorted his co-accused to kill Muhammad Bakhsh to avenge the murder of Qamru.
44. As to the defence version, it is sufficient to say that it is also equally unworthy of belief. The appellant would have us believe that Muhammad Bakhsh had been given a beating some two months prior to the present incident by the appellants because he was found in suspicious circumstances and it was to avenge that beating that Muhammad Bakhsh, Mauj A.I and Nasir had attached the appellants, namely, Mughal, Bhoora, Khawand Bakhsh and Sabaz A.I and it was in the exercise of the right of private defence that the said appellants had caused the death of Muhammad Bakhsh and injuries to Mauj A.I and Nasir. It was the appellants' case that Muhammad Bakhsh was armed with a gun. Though he, Nasir and Mauj A.I PWs had made preparations for the attack, so much so, that Muhammad Bakhsh deceased had armed himself with a gun for the purpose, yet Muhammad Bakhsh did not even fire an ineffective shot. One has, in my opinion, to be too credulous to believe the defence version, particularly when no basis for it was laid. As to the defence evidence consisting of the testimony of Sohbat Khan and Gul Muhammad DWs, that was in my view rightly disbelieved by the learned Sessions Judge. Neither of them was an eye-witness to the incident.
45. The position thus is that while there is no doubt that the incident occurred in which three persons from the side of complainant party, one fatally, and four persons from the side of the accused party, were injured, yet the prosecution evidence as to motive and the manner in which the incident had occurred leaves one in grave doubt that it had really occurred in that manner.
And as has been seen above, it is equally unsafe to proceed on the basis that the complainant party had made preparations so much so that Muhammad Bakhsh deceased had armed himself with a gun, and attacked the accused party to avenge the alleged beating of Muhammad Bakhsh deceased at the hand of Mughal and his relatives in an incident which had occurred some two months before the present occurrence. In my view what appears to have happened was that the parties had, on account of something that took place suddenly, had a free tight in which both parties received injuries. That, in my opinion, is the only safe course to adopt. As it was, Sawan and Nasir PWs who are not shown to be related to the deceased but who were on the side of the complainant party also received injuries, probably when they had intervened to save Muhammad Bakhsh deceased. The case, therefore, falls to be dealt with under Exception 4 to Section 300 of the P.P.C. Mughal appellant was armed with gun, -yet he fired only one shot. Similarly, Wahid Bakhsh, Sabaz A.I and Sheru caused only one blow each to the deceased. Mughal appellant did not fire the second time, nor did the three appellants repeat the blows. They cannot, therefore, be said to have acted in a cruel or unusual manner or to have taken undue advantage of the deceased. Each of them was, therefore, responsible individually under section 304 Part I of the P.P.C. I would convict them accordingly and sentence them to suffer R.I. For ten years each. Their sentence of fine and imprisonment in default is maintained and so is the direction as to payment of compensation of the learned Sessions Judge.
46. Nasir PW was the best person to depose who caused him the only injury; according to him, it was Wahid Bakhsh appellant. The injury being on the forearm, his conviction under section 307 P.P.C. Cannot be sustained. His conviction is altered to one under section 325 P.P.C. And his sentence is reduced to two years R.I. This shall run concurrently with his sentence under section 304 Part I.
47. As to the injuries of Mauj A.I, he was the best person to testify as to who was responsible for his injuries. As he did not appear into the witness box, the inference is that he would not have supported the prosecution case.
48. As has been seen above, the prosecution evidence to the injuries caused by Khawand Bakhsh, Bhoora and Piran was widely conflicting and it is not, therefore, safe to convict them on this evidence. I would therefore, give them the benefit of doubt, set aside their conviction and sentence and acquit them.
S.A./M-1658/L Order accordingly 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.