' ALI HUSSAIN QAZILBASH, J.--This judgment will dispose of two appeals, by leave, one filed by Buland Khan and the other by Mst. Mubarak Jan, against the judgment of a learned Division Bench of the Lahore High Court, Rawalpindi Bench, dated 4-5-1985.
2. Buland Khan son of Haider Khan, his two brothers Sumandar Khan and Nawab Khan, Sarfraz Khan son of Bahadur Khan, and his two brothers Sumandar Khan and Taj Khan, Muzaffar Khan son of Muhammad Khan and Muhammad Aslam son of Hazir, caste Mughal, resident of village Bajal, Police Station Fatehjang, Tehsil and District Attock, were tried by the learned Sessions Judge, Attock, on the charge of committing the murder of Sarfraz Khan, their co-villager, and attempted murder of Mumraiz Khan, Amanat Khan and Amir Khan, in prosecution of their common object after forming themselves into an unlawful assembly on 12-8-1980 at 'rotivela' in the area of village Bajal.
The trial Court convicted Buland Khan and his brother Sumandar Khan and Taj Khan under section 302/34, P.P.C. And sentenced Buland Khan to death and a fine of Rs,5,000 or in default to one year's R.I. As per its order, dated 26-9-1981. Through the same order his brother Sumandar Khan and his co-accused Taj Khan were sentenced to imprisonment forlife and a fine of Rs,5,000 each or in default to one year's R.I. Each. In addition, Sumandar Khan was convicted under section 324, P.P.C.
And sentenced to one year's R.I. While Taj Khan was convicted under section 323, P.P.C. And sentenced to six months' R.I. The sentences of both these accused were ordered to run concurrently and the benefit of the provision of section 382-B, Cr.P.C. Was allowed to them. Two separate appeals were filed by Taj Khan, Buland Khan and his brother Sumandar Khan against their conviction and sentence before the High Court. The criminal appeals and the murder reference were disposed of by the High Court as per the impugned judgment, through which the conviction of Buland Khan appellant under Section 302 P.P.C. Was maintained but his sentence was altered to imprisonment for life. His sentence of line was, however, maintained. Sumandar Khan and Taj Khan were, however, acquitted of the charge under section 302/34, P.P.C. But their convictions and sentences under sections 324 and 323, P.P.C., respectively, were maintained.
3. The above judgment has been questioned through the pesent appeals, one filed by Buland Khan and the other by the complainant side.
4. The facts, in brief, are that on 12-2-1980 at 'rotiwela' time, a few cattle belonging to Buland Khan trespassed into the fields of Mumraiz Khan and started causing damage to the field lying ready for cultivation. This attracted Mumraiz Khan and his son Sarfraz from their Dhok who reached there in order to drive out the cattle and when they were doing so, Buland Khan, Nawab Khan, Sarfraz Khan armed with hatchets, Sumandar Khan armed with spear while Sumandar Khan son of Bahadur Khan, Taj Khan, Muzaffar Khan and Muhammad Aslam armed with Sotis came there, and on reaching the place of occurrence Buland Khan raised a Lalkara addressing Mumraiz Khan and his son Sarfraz that he would teach them lesson for driving out his cattle. On launching the attack, Buland Khan gave a hatchet blow to Sarfraz hitting him on his head followed by Nawab Khan who also gave him a hatchet blow which landed on the same part of the head of Sarfraz Khan, as a result of which his brain came out and he fell on the spot. Then Sumandar Khan gave a spear blow to Mumraiz Khan injuring him on his left arm. Thereafter Sarfraz Khan inflicted hatchet blow to the complainant injuring the little finger of his left hand. Muhammad Aslam, Muzaffar Khan, Taj Khan and Sumadar Khan then belaboured the complainant and his son with sticks causing them injuries.
The occurrence attracted Amir Khan, the nephew of the complainant, Amanat Khan, his grandson, who were grazing cattle nearby, who rushed to the spot to save the complainant and his son but they also were beaten by Buland Khan and his companions. Thereafter, Buland Khan and his companions left the spot. Sarfraz Khan who by then had died was put on a cot and taken to the village and the complainant left for the police station for lodging the report.The motive given in the F.I.R. Was that Sarfraz Khan deceased was married to Mst. Imtiaz Begum, the niece of Buland Khan.
This marriage was resented by Buland Khan who tried to persuade Mst. Imtiaz Begum to repudiate the marriage which was refused by her. This had annoyed Buland Khan and hence the occurrence.
5. The above report was recorded by Abdul Ghafoor, S.I. Talagang (then S.H.O. P.S. Fatehjang) the same day at 2-30 p.m. At the instance of Mumraiz Khan at the police station. Mumraiz Khan was accompanied by Amanat Khan and Amir Khan P.Ws. Who were all injured. After preparing their injury sheets, their statements under section 161, Cr.P.C. Were recorded and they were sent for medical examination. The Investigating Officer then proceeded towards the spot. On reaching there he prepared the injury sheet and inquest report of the deceased and sent the dead body for post-mortem examination. He collected blood-stained earth from the spot and on the following day collected the clothes of the deceased as per memo. Ex. P.E. On 16-8-1980 he arrested Buland Khan and his brother Sumandar Khan, Nawah Khan, Sarfraz Khan and Taj Khan. On the same day Taj Khan led to the recovery of the Soti from his residential house which was taken into possession.
The same day, Sarfraz Khan led to the recovery of the hatchet from his house which was taken into possession. On 18-8-1980 Buland Khan in police custody volunteered to get recovered the hatchet which was accordingly done as per memo. Ex.P.J. Nawab Khan also led to the recovery of hatchet from his house. On 22-8-1980, Muzaffar Khan and Muhammad Aslam were arrested. Three days later Muzaffar Khan led to the recovery of Soti from his house. Sumandar Khan was absconding and he was proceeded against under section 87/88, Cr.P.C. He was later on arrested on 28-9-1980 and on 3-10-1980 led to his house wherefrom a Soti was recovered. The Investigating Officer also received site plans prepared by the Revenue Patwari. After the completion of the investigation, the accused were put to trial.
6. At the trial, the prosecution produced as many as twelve witnesses. Of them, Dr. G.N. Ghauri, Medical Officer, D.H.Q. Hospital, Attock, appeared as P.W.1. He conducted post-mortem examination on 13-8-1980 at 8-15 and found the following injuries on the dead body of Sarfraz Khan: "(1) A cut wound on the top of back of head, occipital and left parietal bones were cut; brain was cut and brain matter was coming out of the wound. Its dimension was 12 x 5 x 6 c.m.
(2) Contusion 8 x 2 c.m. On front of left shoulder.
(3) Contusion 12 x 1.5 c.m. On front of left chest, 5 c.m. Below injury No,2.
(4) Contusion 6 x 5 c.m. On front of right side of lower part of chest.
(5) Contusion 8 x 2 c.m. On the back of right lower chest close to the central line of the body.
(6) Abrasion just below injury No,5, 7 x 3 cm.
(7) Contusion 8 x 3 c.m. On front of right thigh near its root.
(8) Abrasion 3 x 3 c.m. On the back of right forearm near chest."
' The scalp and skull were found cut, 11th and 12th ribs on the right side of chest were fractured against injury No,5 pleura was also injured and right lung punctured. Stomach and intestines were empty. The doctor opined that injury No,1 was caused by a sharp-edged weapon while the rest by blunt.
' He also examined Amir Khan on 12-8-1980 and found as many as five contused wounds of various descriptions on his head, left shoulder and left chest. On the same day he also examined Mumraiz Khan and found a stab wound 1 x 2 c.m. Bone deep on the inner side of left forearm in its distal 1/3rd four contused wounds on the back of right head, outerside of right chest, left scapula and outer side of right thigh; and a punctured wound on the back of right side of hand 1 x 2 c.m. All the injuries were found simple. Injuries Nos.1 and 5 were caused by sharp-edged weapon while the rest by blunt.
' Amanat Khan P.W. Was also examined the same day and a contusion 3 x 3 c.m. On the left side of the back of hand was found. The injury was simple.
7. The appellant in his statement under section 342, Cr.P.C. Has totally denied the charge. He also denied the motive set up by the prosecution. In order to establish his enmity with the witnesses, he made a statement which is available on the record.
8. The trial culminated in the conviction of the appellant, his brother Samundar Khan and Taj Khan as stated earlier. In the High Court, on the appeal by the convicts, the conviction of the appellant was maintained but his sentence reduced to imprisonment for life. The rest were acquitted for the offence under section 302/34, P.P.C. But their conviction under sections 323 and 324, P.P.C. And the sentence imposed upon them by the trial Court was maintained.
9. Leave was granted in this case to reappraise the evidence.
10After hearing the learned counsel for the parties for and against the appeals, we have come to the conclusion that the appeal of Buland Khan must succeed. In this occurrence Sarfraz son of Mumraiz Khan was done to death while Mumraiz Khan (who later on died his natural death), Amir Khan (P.W.10) and Amanat Khan were also injured. Amanat Khan, the injured P.W. Was not produced by the prosecution at the trial and instead in support of its case it produced Najabat Khan and Fazal Khan who appeared as P.Ws. 5 and 11 respectively. The trial Court and the learned Judges of the High Court did not believe the motive alleged in the F.I.R. And came to the conclusion that the immediate cause of the incident was the straying of the cattle of Buland Khan appellant in the fields of Mumraiz Khan which ultimately led to the incident. Both the Courts did not believe the other alleged eye-witnesses but relied only on Amir Khan (P.W.10) and in doing so upheld the conviction.
11. On our examining the case we too do not disbelieve the presence of Amir Khan (P.W.10) at the spot as he had received injuries in the occurrence. A close examination of his evidence has, however, led us to the conclusion that this solitary witness is not a truthful witness. While appearing at the trial he has contradicted himself on most crucial point. As regards the head injury of the deceased he deposed that Buland Khan gave a hatchet blow to Sarfraz Khan (deceased) hitting him on his head. He was followed by Nawab Khan who gave a hatchet blow on his left shoulder but in his statement under section 161, Cr.P.C. Ex. D.B. He had stated that the hatchet blow of Nawab Khan accused also landed on the head of the deceased. At the trial he further stated that then Sarfraz Khan accused gave hatchet blow on the front chest of the deceased as a result of which he fell down but it is not so recorded in Ex. D.B. The above statement of this witness about the hatchet injuries on the left shoulder and front chest of Sarfraz Khan deceased by Nawab Khan and Sarfraz Khan accused, respectively, has been belied by the medical evidence inasmuch as according to the post-mortem examination report, these injuries were inflicted by a blunt weapon. Obviously the above material contradictions have made the case of the prosecution agairst the appellant extremely doubtful and it cannot be said with certainty whether it was the blow given by the appellant or Nawab Khan accused which landed on the head of the deceased. Further, other corroborative evidence in this case is also lacking.
12. In this view of the matter, Criminal Appeal No,12 of 1987 filed by Buland Khan is accepted, his conviction and sentence is set aside and he is ordered to be set at liberty forthwith if not required in any other case. Since the above appeal of Buland Khan has been accepted, Criminal Appeal No,13 of 1987 filed by Mst. Mubarak Jan automatically fails and is hereby dismissed. The bail bonds of Sumandar Khan and Taj Khan shall stand discharged.