' FAZAL KARIM, J.--Muhammad Rafique, Inayat, Muhammad Arif, Ghulam Haider, Muhammad Iqbal, Boota and Muhammad Ikram, convicts, were tried under sections 148, 302 and 307 read with section 149 of the P.P.C. By the learned Sessions Judge, Sialkot. By his judgment dated 24th July, 1980, they were convicted and sentenced as follows:--
(1) Under section 148 of the P.P.C., R.I. For two years;
(2) Under section 302 read with section 149 of the P.P.C. For the murder of Rashid, Rafique and Bashir, imprisonment for life, a fine of Rs,2,000.00, in default of payment of fine R.I. For six months each on three counts; and
(3) Under section 307 read with section 149 of the P.P.C. For the attempted murder of Wali Muhammad, Muhammad Malik and Nazir Ahmad PWs, R.I. For five years, a fine of Rs,1,000.00 and in default R.I. For three months each on three counts.
2. Half of the fine, if realized from the convicts under section 302 read with section 149 of the P.P.C., was directed to be paid to the heirs of the deceased persons as compensation under section 544- A of the Cr.P.C.; half of the fine under section 307 read with section 149 of the P.P.C., if realized, was directed to be paid to Wali Muhammad, Muhammad Malik and Nazir Ahmad PWs in equal shares as compensation under section 544-A of the Cr.P.C. "All the substantive sentences awarded to the accused under sections 148, 302/149 and 307/149 of P.P.C." were directed to run concurrently.
3. Criminal Appeal No,1115 of 1980 is by Muhammad Rafique and Muhammad Arif, convicts; Criminal Appeal No,1062 of 1980 is by the remaining five convicts; they are directed against their conviction and sentence. Criminal Rev. No,1149 of 1980 is by the State, praying that the sentences of life imprisonment of the appellants should be enhanced to death. Wali Muhammad, complainant, has also filed a Crl. Rev. No,789 of ,1980, also asking for the enhancement of the appellants' sentences to death.
4. The appellants formed two distinct groups; Ghulam Haider and Muhammad Iqbal, appellants, are father and son; Muhammad Iqbal, appellant is married to a sister of Inayat and Muhammad Boota, appellants. Muhammad Ikram alias Billa, appellant, was said to be an apprentice of Muhammad Iqbal, appellant. Thus, Ghulam Haider, Muhammad Iqbal, Inayat, Boota and Muhammad Ikram, appellants formed one group. Muhammad Arif, appellant's sister was wife of Muhammad Rafique, appellant, and they formed the other group.
5. The incident occurred at about 8-30 a.m. On 29th July, 1978 in village New Hamza Ghauns in front of the Dera of Rashid deceased, which was about two miles from P.S. Sadar Sialkot and was reported to Muhammad Sadiq SI (PW 18) at 11-50 a.m. On the same day in the District Headquarter Hospital, Sialkot, by Wali Muhammad (PW 15). Wali Muhammad's statement is Exh.PE and formal FIR is Exh.PE/1.
6. The complainant party can also be divided into two groups. Rafique and Rashid deceased persons were sons of Habibullah; Muhammad Malik (PW 17) was their brother. Habibullah was son of Abdullah and Wali Muhammad P.W. 15's maternal-aunt was the wife of Abdullah. Bashir deceased was a son of Allah Ditta; Nazir Ahmad (PW 16) and Muhammad Sadiq (PW 10) were his real brotheRs,
7. The prosecution case as laid in the Wali Muhammad PW's statement Exh.PE was as follows.
Muhammad Rafique, appellant, had purchased 12 kanals of land from one Nazir Ahmad and Bashir deceased had instituted a suit against him. Rafique, appellant, wanted him to withdraw the suit but he would not agree. Then a day preceding the incident at about 5-00 p.m., Muhammad Malik PW's buffalo had entered into the pond of Ghulam Haider, appellant, and Ghulam Haider, appellant, and Muhammad Malik had exchanged abuses. At about 9-00 p.m. On the same day, Ghulam Haider, Arif and Muhammad Rafique, appellants, went to the house of Muhammad Malik PW; the latter was not in the house.
' They abused his women-folk and also threw brick-bats in the house. As no male member was in the house, Ghulam Haider and his companions went away threatening that they would see them on the next day. On 29th July, 1978 at about 8-30 a.m., Nazir Ahmad, Muhammad Arif and Wali Muhammad PWs alongwith three deceased persons, Bashir, Rashid and Rafique, were present at the Dera of Bashir deceased, when the appellant, Inayat, armed with a Sota and the rest of them with daggers went there. Ghulam Haider raised a Lalkara and the appellants fell upon the deceased persons and the PWs, Rashid deceased ran for his life towards the village; he was given a chase by Ghulam Haider and near the northern side of the graveyard gave a dagger blow in the left side of his chest. He fell and died there. Rafique and Bashir deceased persons also ran for their lives towards the Dera of Muhammad Nawaz Lambardar, which was at a distance of one furlong from the Dera of Bashir deceased. Rafique and Muhammad Ikram alias Billa, appellants, ran after Bashir deceased and Rafique gave a dagger blow in his left flank and Billa gave two dagger blows on his buttock. Boota gave a dagger blow in the abdomen and on the right arm of Rafique deceased and Arif, appellant, gave two dagger blows on his thigh and leg. Bashir and Rafique deceased persons reached the Dera of Muhammad Nawaz Lambardar, where Rafique died of the injuries. At the dera of Bashir deceased Inayat also gave Sota blows to Muhammad Malik; Ghulam Haider, appellant, caused injuries to Nazir Ahmad and Wali Muhammad PWs with their daggers,
8. The alarm attracted Rashid son of Allah Ditta and Nazir Ahmad son of Sardar Ahmad, who reached and saw the occurrence. The appellants ran away.
9. As noticed above, Rashid and Rafique deceased persons died at the spot. Bashir deceased was carried to the hospital; he died there.
10. Muhammad Malik, Wali Muhammad and Nazir Ahmad injured PWs were also removed to the hospital; as noticed above, it was in the hospital that Wali Muhammad's statement Exh.PE was recorded by Muhammad Sadiq S.I.(PW 18).
11. Bashir deceased had reached the hospital at 9.45 a.m. On 29th July, 1978 and was medically examined by Dr. Muhammad Aslam Bhatti(PW5). He was found to have three incised wounds on his person, two being on the left and right gluteal region and the third being a wound 1/2" x 1/4" on the outer left side of chest at lower part. He died in the hospital on the same day and Dr. Muhammad Aslam Bhatti had carried out the post-mortem examination of his dead body at 7-00 p.m. He had found that injury No,3 had cut the left lung, punctured the upper lobe left side of heart and injured the left side of pleaurae. This injury was grievous and dangerous to life and was, in the opinion of the doctor, sufficient to cause death in the ordinary course of nature. The first two injuries were simple.
12. Dr. Muhammad Younas Chughtai(PW7) had performed the autopsy on the dead body of Rafique deceased at 8.45 a.m. On 30th July, 1978 and had found the following injuries:
(1) Incised wound 1-1/4" x 1/2" on the abdomen slightly towards the right side of middle, 1-3/4" above the umblicus.
(2) Incised wound 3/4" x 1/4" on the middle and inner aspect of right upper arm.
(3) Three abrasions each of 1/2" x 1/4" in area of 3" x 1-1/2" on the inner aspect of right knee.
(4) Abrasion 2" x 1/4" on the left leg 1-1/2" below the left knee.
(5) Contusion 1" x 3/4" on the right cheek, 1" below the right eye.
(6) Incised wound 1-1/4" x 1/2" on the outer aspect of the left thigh upper part.
(7) Incised wound 1-1/4" x 1/2" on the outer aspect of the left thigh upper part, 1" downwards laterally to injury No,6.
(8) Abraided contusion 3" x 3/4" on the back of the left chest upper and middle part.
' Injuries Nos.3, 4, 5 and 8 were simple and were caused by blunt weapon; injuries Nos.2, 6 and 7 were also simple and were caused by sharp-edged weapon. Injury No,1 had been caused with sharp-edged weapon and was grievous and dangerous to life. Death was due to shock and haemorrhage resulting from injury No,1; probable time between the injuries and death was instantaneous and between death and post-mortem examination was about 24 hours,
13. Dr. Muhammad Younas had also performed the autopsy on the dead body of Rashid deceased at 9.50 a.m. On 30th July, 1978. He had three injuries on his person, one being an incised wound 1- 3/4" x 1/2 on the left upper chest; the second being an abrasion on the left side of forehead and the third being a swelling 1-1/2" x 3/4" on the left eye-brow. Injuries No,2 and 3 were simple and were caused by blunt weapon; injury No,1 was caused by sharp-edged weapon and was grievous and dangerous to life. In the opinion of the doctor, death was due to shock and haemorrhage resulting from injury No,1, which was sufficient to cause death in the ordinary course of nature. Probable time that elapsed between injuries and death was instantaneous and between death and post-mortem examination was about 24 to 25 hours,
14. Dr. Muhammad Aslam had medically examined Nazir Ahmad PW at 10-00 a.m. On 29th July, 1978; he was found to have six incised wounds on his person, one on the left arm, the second on the left shoulder joint, the third on the left lumber region, the fourth on the right gluteal region, the fifth on the right parieto temporal region and the sixth on the back left side of the chest lower part. The injuries were simple.
15. The same doctor examined Wali Muhammad PW at 10.15 a.m. On 29th July, 1978; he was found to have two incised wounds, one on the outer side of left thigh upper part and the other on the front of left leg in middle. Both the injuries were simple.
16. Muhammad Malik PW was examined by the same doctor at 10-25 a.m. On 29th July, 1978. He had three lacerated wounds on the right side of lower lip, resulting in displacing 5th tooth; then his inciser tooth was found missing and his right upper central lateral incisor, and canine were found shaky. He had also an abrasion on the left arm. The injuries had been caused with blunt weapon.
The three lacerated wounds were declared grievous and the remaining simple.
17. Muhammad Rafique, appellant, had also suffered injuries during the course of the incident. He was the first to reach the hospital at 9.15 a.m. On 29th July, 1978 and was medically examined by Dr. Muhammad Aslam Bhatti. He had the following injuries on his person:-
(1) Incised wound 1" x 1/4" skin deep on the left temporal bone.
(2) Incised wound 4" x skin scalp overturned x muscle on the outer side of right elbow joint.
(3) Incised wound 1/3" x 1/8" x 1/4" on the outer side of right forearm upper part.
(4) Incised wound 2-3/4" x 1/2" x hone on the outer side of left leg upper part.
(5) Incised wound 1/3" x 1/2" x bone on the left hand extending from palm towards the left ring finger.
(6) Incised wound 1-3/4" x 1/8" x 1/8" on the left thumb.
(7) Incised wound 1/2" x 1/8" x 1/8" on the left little finger.
(8) Incised wound 3/4" x 1/4" x bone on the terminal pore of left middle finger.
(9) Incised wound 1/2" x 1/4" x 1/3" on the terminal pore of the right middle finger.
' All the injuries were caused by sharp-edged weapon within 1 to 2 hours duration. Injuries Nos.4 and 5 were kept under observation and X-ray was advised. Later, the X-ray report showed that there was a fracture of metacarpal bone of ring finger of left hand. Injury No,5 was declared grievous and the remaining injuries were declared simple.
18. It will have been noticed that there was no mention of Muhammad Rafique, appellant's injuries in Wali Muhammad PW's statement Exh.PE. In the evidence, the eye-witnesses said that Muhammad Rafique, appellant, had received injuries at the hands of Bashir deceased. In that context, Dr. Muhammad Aslam Bhatti was cross-examined. He could not say if Muhammad Rafique, appellant, could inflict the injuries after having sustained the injuries on his person. It was also the prosecution case that after having received injuries, Bashir deceased had been able to run some distance to reach the Dera of Nawaz. The Doctor was of the opinion that "it is unlikely that after the receipt of injuries, Bashir deceased would be in a position to run, move or fight. It is also unlikely that he would cause injuries to other person after the receipt of injuries on his person".
19. The investigation of the case was carried out by Muhammad Sadiq S.I. (PW 18). He had reached the spot and had collected blood-stained earth vide memos. Exhs.PW, PX and PY from three different places. He had recovered blood-stained dagger P17 from Muhammad Rafique appellant, vide memo. Exh.PDD, dagger P18 fiorn Muhammad Arif, appellant, vide memo Exh.PEE, his blood- stained shirt P19 and Shalwar P20 vide memo. Exh.PFF and blood-stained Sota P21 from Inayat, appellant, vide memo. Exh.FGG, all on 31st July, 1978. On 7th August 1978, he recovered blood- stained shirt P22 of Muhammad Ikram, appellant, vide memo. Exh.PHH, blood-stained dagger P23 vide memo. Exh.PJJ from Muhammad Ikram, appellant, blood-stained shirt P24 vide memo. Exh.PKK from Ghulam Haider, appellant, blood-stained dagger P25 vide memo. Exh.PLL from Ghulam Haider, appellant, blood-stained shirt P26 vide memo. Exh.PMM from Muhammad Iqbal, appellant, and dagger P27 vide memo. Exh. PNN also from Muhammad Iqbal, appellant.
20. All these articles were found by the Chemical Examiner and the Serologist stained with human blood vide Exh.PVV and Exh.PWW.
21. It should also be mentioned here that while Muhammad Rafique, appellant, was arrested on 30th July, 1978, Inayat and Arif, appellants, were arrested on 31st July, 1978, Ghulam Haider, Muhammad Iqbal and Muhammad Ikram, appellants, were arrested on 4th August, 1978 and Boota, appellant, was arrested on 6th August, 1978.
22. At the trial, the prosecution called 18 witnesses to support its case; they included Dr. Muhammad Aslam Bhatti(PW 5), Dr. Abdul Raoof Saddle (PW 6), who had given his opinion on the query made by Muhammad Sadiq S.I. That Nazir Ahmad PW was not fit to make statement, Dr. Muhammad Younas Chughtai (PW 7) and Muhammad Sadiq S.I.(PW 18). The eye-witness account of the incident was furnished by the testimony of three injured persons, namely, Wali Muhammad (PW 15), Nazir Ahmad (PW 16) and Muhammad Malik (PW 17).
23. The evidence of the remaining PWs. Can be immediately dealt with. Sajad Lateef Constable (PW 1) had escorted the dead body of Bashir to the mortuary. Boota H.C.(PW 2) had escorted the dead bodies of Rashid and Rafique deceased persons from the place of incident to the mortuary. He did not know if the place, where the dead body of Rafique deceased was lying, was the Dera of Muhammad Nawaz Lambardar; the dead body was lying on a table. Bashir Masih draftsman had prepared site plans Exh.PC and its copy Exh.PC/1 and Exh.PD and its copy Exh.PD/1 in the scale of 40 feet to an inch and the other two in the scale 20 feet to an inch. Muhammad Azam (PW 4) had, on receipt of Wali Muhammad's statement Exh.PE, recorded formal FIR Exh.PE/1. Muhammad Younas, H.C. (PW 8) had taken the parcels to the Chemical Examiner's Office, Lahore. Muhammad Akbar Constable (PW 9) had also escorted the dead bodies of Rafique and Rashid, deceased persons.
Muhammad Sadiq (PW 10) was a brother of Bashir deceased. He had joined investigation and in his presence, blood-stained earth was taken from the places where Rafique, Rashid and Bashir deceased persons were injured. Muhammad Bashir (PW 11) had identified the dead bodies of Rafique and Rashid at the time of their autopsy and Muhammad Anwar (PW 12) had identified the dead body of Bashir deceased. Ghulam Rasool (PW 13) was witness to the recoveries from Muhammad Rafique and Muhammad Arif, appellants. Muhammad Akhtar (PW 14) deposed to the recoveries from Inayat, Muhammad Ikram alias Billa, Ghulam Haider and Muhammad Iqbal, appellants.
24. That brings us to the testimony of Wali Muhammad (PW 15), Nazir Ahmad (PW 16) and Muhammad Malik (PW 17), upon which the prosecution primarily rested; they were injured during the course of the incident. Their testimony needs some detailed examination. Suffice it to say here that they supported, or tried to remain as close to, the prosecution case as laid down in the First Information Report.
25. In his statement under Section 342 of the Cr.P.C., Rafique, appellant, denied that Bashir deceased had instituted a pre-emption suit against him. According to him he had obtained land on usufructuary mortgage with possession for a period of 19 years, some five years before the occurrence from Nazir son of Ali Muhammad. Nazir had sold his land, alongwith his share in the Dera to one Muhammad Ismail. He (Rafique) filed a suit for possession by pre-emption against Muhammad Ismail and obtained a decree. He learnt after the occurrence that "Bashir deceased had implicated me in the pre-emption suit filed by him against Ismail after a decree of possession was passed in my favour". Explaining the injuries on his person, he stated as follows:-- "Bashir deceased bore grudge against me because I had obtained a decree for possession by pre- emption of the land in which he too was interested as he had also filed a suit against the vendee Ismail. I had also acquired a proportionate share in the Dera. I was holding possession of the land since five years before the occurrence as a usufructuary mortgagee. The mortgage was for a period of 19 years, On the day of occurrence I went to my Dera but was attacked by Bashir deceased. I continued to ward off the blows and received a number of injuries. At long last I held the weapon by the blade in order to save my life. In the meantime, a number of villagers on my cries rushed towards the scene of occurrence seeing whom Bashir ran towards the Dera of Nawaz. I fell down on account of the injuries on the spot near my Dera (which the prosecution claims to be the Dera of Bashir deceased). I was removed from the place of occurrence directly to the hospital and was admitted there at 9-15 a.m. Bashir deceased and Rafique deceased were murdered near the Dera of Nawaz and I could not see from the place where I was lying injured as to who had caused injuries and to whom. Similarly, Rashid was injured near the pond at a considerable distance from the place where I was lying injured and I was not in a position to see as to what persons fought with whom and injured whom. My co-accused Arif resides in City Sialkot and was not present at the time of occurrence. He has been falsely implicated in the case merely because he is the brother of my wife."
26. Inayat, Ghulam Haider, Arif, Muhammad Iqbal, Boota and Muhammad Ikram, appellants, denied having had anything to do with the commission of the offence.
27. Ghulam Haider, appellant, admitted that at 5-00 p.m. On 28-7-1978, the buffalo of Muhammad Malik PW had entered the pond in his vicinity and he had abused Muhammad Malik PW. He too denied that he had participated in the commission of the crime or had caused injuries to Rashid deceased or anybody else.
28. None of the accused persons admitted the recovery of the above-mentioned articles from them.
29. They did not lead any evidence in their defence.
30. The learned trial Judge referred to the alleged motive and observed that "the motive in a criminal case is not to be proved in the manner in which it is required to be established in a civil suit. Suffice it to say that there were ill-feelings between the parties due to the above-mentioned incident and they nourished grudge against each other. The accused, therefore, had a motive to make an attack on Bashir, Rafique and Rashid, the deceased persons and Nazir, Wali Muhammad and Muhammad Malik PWs".
31. Regarding the testimony of Wali Muhammad, Nazir and Muhammad Malik, the learned trial Judge was of the opinion that that inspired confidence; they were injured at the spot and their presence could not be doubted. As to the prosecution failure to mention in the FIR the injuries of Rafique, appellant, the learned trial Judge was of the opinion, that "the nature of the injuries shows that these could be inflicted by a small knife as had been explained by the eyewitnesses. These injuries were inflicted by Bashir deceased while he was warding off the attack on his person by Muhammad Rafiq accused. Almost all these injuries are on the hands of the accused which lend support to the version of the prosecution witnesses. Only one of the injuries and that too on the left ring finger was found to be grievous by the doctor". This suppression of these injuries in the FIR was, so observed the learned trial Judge, not fatal to the case of the prosecution. Dealing with the argument that Ghulam Haider was an old man, aged about 70 and "Rashid deceased was only about 27 years old and, therefore, it does not appeal to reason that he could have been murdered by an old man like Ghulam Haider", the learned trial Judge observed that Rashid was empty- handed and "Ghulam Haider was armed with a dagger who knew that this co-accused were also armed with deadly weapons, so it is not unnatural that an old man would murder a young man.
Moreover, Ghulam Haider though an old person appears to be of good physique. Even at the age of 70, he is quite healthy and energetic. He, therefore, had the strength to hit a young man of the age of about 27". The learned trial Judge also held the recovery of the blood-stained weapons (except sota Ex.P.21 which was not stained with blood) and the clothes at the instance of the appellants proved; they connected them with the offences. Though no recovery had been made from Boota, appellant, yet as he was arrested about 9 days after the occurrence, "he might have" according to the learned trial Judge, "destroyed his dagger and that is why it was not recovered by the police during the investigation of the case".
' As as been noticed at the outset, the appellants formed two distinct groups, one consisting of Ghulam Haider, Muhammad Iqbal, Inayat, Boota and Muhammad Ikram, appellants, and the other consisting of Rafique and Arif, appellants. Similarly, Rafique and Rashid deceased persons alongwith Muhammad Malik and Wali Muhammad PWs formed one group and Bashir deceased, Nazir Ahmad and Muhammad Sadiq PWs formed another. According to the prosecution evidence, there was only one thing in common between Bashir and Rafique deceased persons and that was that they had purchased a house from one Taj Muhammad and the father of Inayat and Boota, appellants, Muhammad Din by name, had instituted a suit against this sale.
32. The Dera of Bashir deceased, where the incident occurred, it was brought out in the evidence of Wali Muhammad PW, belonged to one Babu Allah Ditta Kakkay Zaai. It consisted of 6 acres of land.
The said Babu Allah Ditta Kakkay Zaai had given half of it to his son Ejaz and the other half to his grandson Abdul Salam. Ejaz had sold his share to Nazir and Munir son of Ali Muhammad. Nazir had leased out his share about 4 Kanals to Rafique, appellant, and Nazir son of Nawab. In fact and this was also Rafique, appellant's case, a usufructuary mortgage with possession for 19 year had been made some five years before the occurrence. Wali Muhammad PW also admitted that Rafique, appellant, and his co-motgagee, Nazir, were in possession of this portion of the Ihata and the land.
Nazir had sold his entire share to one Ismail and Bashir deceased had filed a pre-emption suit against Ismail. He admitted that after Rafique, appellant, had obtained a decree, Bashir deceased had applied to implead Rafique, appellant, as a party to the suit.
33.As has been noticed above, Ghulam Haider, appellant, had admitted that he had abused Muhammad Malik PW over the buffalo incident at about 5-00 p.m. On 28-7-1978; he, however, denied that later in the evening, he or his co-accused had gone to the house of Muhammad Malik PW and had hurled abuses and brickbats. Muhammad Malik PW was not present at the time when the alleged hurling of abuses and brickbats had taken place and there was not evidence worth the name to support this part of the prosecution case.
34. A reference to the site-plans Exh.PC and PD would show that the place of incident, viz. The Dera of Bashir deceased (shown as point 1 in black) was sufficiently removed from the main Abadi of the village. A graveyard intervened between the two. The deceased persons and the injured PWs were, it was the prosecution case, sitting at point No.1 when the appellants, Inayat armed with a Sota and the others armed with daggers, went there and launched an attack. As was admitted by Wali Muhammad PW, Rafique, appellant, had been in possession of a part of the Ihata, where the occurrence took place, and its land as a usufructuary mortgagee with possession. Though in their examination-in-chief, Wali Muhammad and Nazir Ahmad were content to say that the appellants had caused various injuries to them and the deceased persons, yet in their cross-examination, the details of the manner, in which the injuries were inflicted were brought out. According to Wali Muhammad PW, none of the PWs or the deceased persons was armed. The attack began in the following manner. Ghulam Haider raised a Lalkara and ran after Rashid deceased and then all the appellants attacked simultaneously after Rashid deceased had been injured by Ghulam Haider, Ghulam Haider appellant, chased Rashid deceased for a distance of about 35 Karams and overtook him through the graveyard near the pond. Rashid deceased was injured on the northern side of the graveyard near the house of Faqir. Ghulam Haider, appellant, had given only one dagger blow to Rashid deceased there. Ghulam Haider then returned and joined the remaining assailants. According to Wali Muhammad PW, they had encircled them but according to Nazir PW, they had not encircled them. Then Rafique, appellant, gave a dagger blow to Bashir deceased.
After having sustained the injuries, Bashir deceased stood and ran a distance of about 3 or 4 Kilas but none of the appellants chased him while he was running away. Then Boota, appellant, gave two dagger blows to Rafique deceased. Rafique fell down on receiving injuries in the abdomen.
Then Arif gave him two dagger blows. Both Rafique and Rashid deceased persons, he added, reached the Dera of Nawaz after having been injured. As has been seen above, Rafique died there; Bashir deceased was carried to the hospital and he died in the hospital. As to the injuries suffered by Rafique, appellant, Wali Muhammad PW stated that "Bashir deceased had belaboured Rafique accused otherwise none of us gave any injury to any of the accused. Bashir had given one or two knife blows to Rafique accused before sustaining any injury at his hands". In other words and this was admitted by Nazir PW also, Bashir deceased had given injuries to Rafique appellant, before he was injured.
35.Now there is no dispute about the place of the incident; it was the Dera of Bashir deceased. It will, however, not be correct to say that the appellants were strangers to that place, for, admittedly, Rafique, appellant, was in possession of a portion of the Ihata, of which, Bashir deceased's Dera formed a part; Rafique, appellant, was also in possession of some land attached to that Ihata. As has been seen above, the two groups of the appellants did not have much in common, and the prosecution did not make any serious effort to show why they should have joined together on the fateful day in launching a concerted attack upon the complainant party. There was litigation between Muhammad Bashir deceased and Rafique, appellants, but that litigation had been going on for some time and there is no evidence that they had ever, before the day of incident, quarrelled with each other, or had so much as exchanged abuses. About the buffalo incident, which occurred at about 5-00 P.M. On 28-7-1978 between Ghulam Haider, appellant, and Muhammad Malik PW, the evidence is that they were separated and the matter had ended there. Later, however, Ghulam Haider accompanied by Arif and Rafique, appellants, had gone to the house of Muhammad Malik PW, hurled abuses and bricks when Muhammad Malik was not in the house. But if, Ghulam Haider, Arif and Rafique, appellants, had actually behaved in that manner and insulted the womenfolk of the house of Muhammad Malik, then the aggrieved party would have been Muhammad Malik PW.
Nazir Ahmad PW deposed to that incident but admitted that he had not interfered when the above-named appellants had thrown brickbats in the house of Muhammad Malik; he had not even informed Malik PW or any of his brothers about this incident. The evidence on that incident, therefore, leaves much to be desired and the occurrence of that incident cannot, in our opinion, be held to be proved.
36. The position that emerges from a combined reading of the site-plans Exh.PC and PD and the evidence of Wali Muhammad, Nazir Ahmad and Muhammad Malik PWs is that the complainant party and the deceased persons were present at point 1 (in black) of the site-plan Exh.PC when the appellants suddenly fell upon them armed with.Daggers and a Sota. Rashid deceased ran for his life; the prosecution would have us believe that Ghulam Haider an old man in his sixties (the learned trial Judge does not appear to have doubted his claim that he was 70) ran after Rashid deceased, gave him a chase for 240 feet, caught up with him and then gave a dagger blow in the chest. Rashid deceased was found to have two more injuries on his person but those could well be the result of a fall. Wali Muhammad PW attribued those injuries to Muhammad Ikram, appellant, but he was armed with a dagger and nobody said that he had also gone after Rashid deceased.
This was, therefore, obviously an exaggeration in an attempt to bring the ocular evidence in line with the medical evidence. Such a story, in our view, must make a demand upon one's sense of credulity. We find it hard to believe that however healthy and energetic Ghulam Haider, appellant, might have been he could have chased and caught up with a young man like Rashid deceased at a distance of 240 feet. There is nothing to show why Ghulam Haider, appellant, should have chosen Rashid deceased in particular as his victim. If the incident of the previous evening had moved him into doing what he did, then his first target would have been Muhammad Malik PW. The latter remained all the time present at the place where they all were sitting at the time of the attack, and had escaped with simple injuries Wali Muhammad and Nazir Ahmad PWs contradicted each other on one material point; it was that according to Wali Muhammad PW, the appellants, had encircled him, Muhammad Malik and Nazir PWs. Nazir Ahmad PW, however, said that the appellants had not encircled them. Wali Muhammad's anxiety obviously was to show that they were prevented by the appellants from running away. This assumes importance, for if they were free to move, then they would naturally have tried to save the deceased persons or at least tried to run away as the deceased persons had done. There is then the significant fact that Rafique, appellant's injuries were not so much as mentioned in the FIR; they were not mentioned in the examination-in-chief of Wali Muhammad, Nazir Ahmad and Muhammad Malik PW either; it was in their cross-examination that they had to admit that Rafique, appellant, had been injured; it was then that they explained that Rafique, appellant, had been injured at the hands of Bashir deceased. Nazir Ahmad PW admitted that Bashir deceased had given injuries to Rafique, appellant, before Bashir deceased was himself injured. This conformed to the opinion of the doctor, who said that Bashir deceased could not have caused injuries after having sustained his injuries. There is therefore no escape from the conclusion that the omission to mention the injuries of Rafique, appellant, was a deliberate attempt at concealing a material circumstance.
37. From what has been said above, it appears to us that though the prosecution story was not the whole truth, yet, bad feelings had existed between the parties, and those bad feelings were accentuated by the buffalo incident of the previous evening; the parties had probably gathered at the place of incident and there was a sudden quarrel. There is, however, no doubt that the appellants were prepared for a fight; they had armed themselves with sharp-edged weapons and had probably gone there with the intention to fight if necessary. Rafique, appellant, was also not speaking the truth when he said that he had been attacked by Bashir deceased, that he had warded off the blows and had received a number of injuries and that he had then held the blade of the weapon of Bashir deceased to save his life. According to him, a number of villagers, whose names he did not think fit to disclose, had reached and they were probably responsible for causing injuries to the deceased persons and the PWs. Obviously, he had not lost his senses on account of his injuries and we are unable to accept the story that he had not been able to see who had caused injuries to whom. Though he did not give the names of those, at whose hands the deceased persons and the PWs might have been injured, yet he was careful enough to exclude the presence of his brother-in-law Arif, appellant.
38. In these circumstances, we are of the opinion that participation of Ghulam Haider, appellant, in the commission of the crime was not proved beyond a reasonable doubt. As to the remaining appellants, there appears no doubt that they had participated in the commission of the crime. The question then is whether all of them can be held constructively liable for the murder of Rafique, Rashid and Bashir deceased persons. In the circumstances of the case, we do not think that it will be safe to hold that the common object of the appellants was the murder of Rafique, Rashid and Bashir deceased persons. The prosecution were not fair enough not to disclose the circumstances as to how the incident began. In other words, the circumstances how the incident commenced remained shrouded in doubt. We would, therefore, hold that each of the appellants, other than Ghulam Haider, was responsible for what he actually did.
39. Bashir deceased suffered three incised wounds; according to the PWs, the fatal one in the chest was given by Rafique, appellant, and the remaining two, which were simple, were given by Ikram alias Billa. Refique deceased suffered 10 injuries, four being incised wounds and the remaining being contusions and abrasions. Boota, appellant, gave him two injuries, and the one in the abdomen was fatal; Arif gave two incised wounds and they were simple. All his injuries except the one in the abdomen which proved fatal and which was caused by Boota, appellant, were simple.
Rashid deceased had three injuries, one in the chest and that was allegedly caused by Ghulam Haider; the other two were blunt weapon injuries and were simple., Nazir Ahmad PW suffered six incised wounds, Wali Muhammad PW suffered two incised wounds and Muhammad Malik PW suffered tee lacerated wounds. While the injuries of Nazir Ahmad and Wali Muhammad PWs were simple, the injuries of Muhammad Malik PW had displaced his 5th teeth and his incisor tooth was missing.
40. For these reasons, we would hold that Rafique and Boota, appellants, were rightly convicted under section 302 of the PPC. In view of what has been said above, we would maintain their sentence of life imprisonment; we do not think that in the circumstances of the case, enhancement of their sentence to death is warranted. Their appeal is rejected. The appeal of Ghulam Haider, F appellant, is accepted and his conviction and sentence are set aside. He shall be released forthwith unless required in any other case. As regards the remaining appellants, the offences committed by them would fall under sections 324 and 325 of the PPC. They have already been in jail since 24-7-1980, that is for about 8 yeaRs, They shall also be released forthwith unless required in any other case.