SARDAR MUHAMMAD DOGAR, J.--- An occurrence took place in the house of Mst. Rasoolan Bibi in village Opal Jagir, at a distance of eight miles from the Police Station Saddar Gujranwala, at Ishawela on 4-12-1985. In that, Bashir Ahmad from the side of Jat tribe and Akram and Ashiq, brothers of Mst. Rasoolan Bibi, were murdered. Some persons from both the sides suffered injuries also. F.I.R. No.39/85 was lodged by Karam Hussain, step-son of Muhammad Bashir, at 1-00 a.m. On 5-12-1985 at the police station. It was recorded by Mushtaq Ahmad S.I. (P.W.11).
According to the said F.I.R. 'Abdur Rashid son of Mst. Rasoolan Bibi had teased Zareena Bibi aged 15/16 years, sister of the complainant, on the same day, when she had gone for easing herself in the fields. Zareena, on return to the house, informed the complainant and his brother Liaqat. They went to the house of Mst. Rasoolan Bibi to lodge a protest. Mst. Rasoolan Bibi hid Abdur Rashid and abused them saying that they had levelled a false allegation against her son. In the meantime, Muhammad Hussain; father of Mst. Rasoolan Bibi, armed with, a Sota, her brothers Ashiq and Akram, armed with Sota and hatchet, Rehmat armed with Jhabal and Siddiq, armed with Sota, came there. On the Lalkara raised by Muhammad Hussain, they started beating the complainant and Liadat In the meantime, their (complainant and Liaqat's step-father), Muhammad Bashir, reached the spot hearing the noise, armed with a single barrel gun. He fired at Ashiq etc. When his cartridges were finished, Siddiq snatched the gun from him. The accused then dragged him inside the room and closed the door. Muhammad Iqbal, brother of the complainant, also arrived there.
From the accused side, Abdur Rashid, armed with Chhuri, Abdul Majid, armed with Bugda, and Abdul Waheed, armed with Chhuri, also arrived. They grievously injured Muhammad Bashir inside the room. The complainant and his two brothers broke open the door to save their father. The accused after re-launching attack on them went away leaving Muhammad Bashir in injured condition. They removed Muhammad Bashir from there and took him, on a trolley driven by a tractor, to Civil Hospital, Gujranwala, where he died.
2. Mushtaq Ahmad S.I. Reached the spot at 5-00 a.m. On his arrival, Rehmatullah (P.W.9) appeared before him and made statement Exh.P.E. Formal F.I.R. Exh.P.E./1 was registered on the basis of P.E. At the police station on the same day at 6-10 a.m. By Muhammad Ashraf, Moharrir, A.S.I. (P.W.5).
According to Exh.P.E., Muhammad Iqbal (brother of Karam Hussain) had quarrelled with Abdur Rashid, nephew of the complainant, and exchanged abuses at Degarwela on the day of occurrence. They were separated. Iqbal, while leaving, had threatened Abdur Rashid that he will avenge the insult. Rehmatullah was present in the house of his sister (Mst. Rasoolan Bibi) at 9-10 p.m. Abdur Rashid, Mst. Rasoolan Bibi, Ashiq and Muhammad Akram, brothers of Rehmatullah, were also there. Muhammad Iqbal, armed with a carbine, Liaqat and Karam Hussain, armed with guns, Latif, Sharif and Bashir (deceased step--father of Karam Hussain) armed with Sotas, and Rehmat son of Mirdad, armed with a Kassi, came up the roof of the house of Mst. Rasoolan Bibi and started firing. The complainant and his companions went inside the room and chained the door. Rehmat started digging the roof with Kassi while the other accused stepped down and started breaking the door of the room. The complainant and his companions per force came out. Muhammad Akram and Ashiq were armed with hatchets. The others had Sotas. Mst. Rasoolan Bibi was empty-handed.
A fight started in the courtyard. Hearing noise, Muhammad Hussain, father of Rehmatullah, also reached there. Iqbal fired a shot from carbine, which struck Muhammad Hussain on the forehead and left ear. Akram and Ashiq gave injuries to Bashir with hatchets. Iqbal fired second shot, which struck Muhammad Akram on the chest. He fell down and died. Karam Hussain fired a shot, which struck Ashiq on the left side of the neck. Liaqat also fired a shot, which hit Ashiq on the chest. He also fell down and died. Liaqat gave blows with the butt of the gun to Muhammad Hussain as a result of which the gun was broken. The accused also caused injuries with Sotas to the complainant on the head and left wrist-joint and on the right hand of Mst. Rasoolan Bibi. During this, they (complainant) also caused injuries to Karam Hussain and Liaqat in self-defence. The broken gun of Liaqat was snatched by them. Villagers arrived there.
The complainant explained towards the end of the F.I.R. That they could not go to lodge the report at the police station as the accused had continued firing after the occurrence also. The Kassi alleged to have been left by the accused on the roof and the broken gun, snatched from the accused, was produced by him before the S.I. Which were taken into possession by the S.I. Vide memo. Exh. P.I.
3. The Sub-Inspector, after despatching the statement Exh. P.E. To the police station, despatched the dead bodies of Muhammad Ashiq and Muhammad Akram for post-mortem after preparing necessary papers. Thereafter, he inspected the spot and collected blood-stained earth from the room where the dead bodies of Akram and Ashiq were lying vide memos. Exhs. P.N. And P.O.
Respectively. Three empties P.9/1-3 lying at the spot were taken into possession by him vide memo.
Exh. P.K.
He continued investigation and arrested the accused. Gun P.10 got recovered by Liaqat on 25-12- 1985 was taken into possession by him vide memo. Exh. P.S. While Sota P.11 got recovered by Latif was taken into possession vide memo. Exh. P.T. Licence of the gun of Bashir, which was produced by Rehmatullah complainant (in broken condition) by Malik P.W., was taken into possession vide memo. Exh. P.O. After completion of necessary investigation on the basis of the allegations levelled in both the F.I.Rs., separate challans were submitted to the Court.
4. Karam Hussain, Muhammad Liaqat, Muhammad Iqbal, real brothers. Rehmat Latif and Sharif, named as accused in F.I.R. Exh.P.E. Were tried by Sessions Judge, ,Gujranwala, under section 302/307/427/449/148/149, P.P.C. Learned trial Judge vide judgment dated 11-7-1988 convicted Muhammad Iqbal, Karam Hussain and Liaqat under section 302/34, P.P.C. On two counts and also under section 449/34, P.P.C. And awarded sentences as follows:- For the murder of Akram:Muhammad Iqbal sentenced to death. Karam Hussain and Liaqat sentenced to imprisonment for life each. All the three sentenced to pay a fine of Rs.2,000 each also, in default whereof to undergo R.I. for one year each.
They were ordered to pay Rs.5,000 each, as compensation, to the heirs of Akram, in default whereof to undergo R.I. for six months each.
For the murder of Ashiq:Liaquat sentenced to death. Muhammad Iqbal and Karam Hussain sentenced to undergo imprisonment for life each. All the three sentenced to pay a fine of Rs.2,000 each also. in default whereof to undergo R.I. for one year each.
They were ordered to pay Rs.5,000 each, as compensation. to the heirs of Ashiq, in default whereof to undergo R.I. for six months each.
For conviction under section 449/34, each sentenced to undergo R.I. For five years plus to pay a fine of Rs.1,000 each, in default whereof to undergo R.I for three months each.
Sentences of imprisonments have been ordered to run concurrently and they have been given the benefit of the provisions of section 382-B, Cr.P.C. As well. Rest of the accused tried alongwith them were acquitted.
5. The separate, appeals filed by all the three convicts and the reference made by the trial Judge for confirmation of the sentences of death are being disposed of together as they have arisen from the same judgment.
6. Statements of 11 P.Ws. Were recorded at the trial.
Dr. Haji Ata-ul-Mustafa Chattha, who had performed autopsy on the dead body of Muhammad Ashiq at 12-05 p.m. On 6-12-1985, appeared as P.W.3. He had noted the following injuries:--- (1)Fire-arm lacerated wounds 1/2 c.m. x 1/2 c.m. In an area of 20 c.m. And 16 c.m. Margins inverted blackish, the left side of the chest and left top of shoulder and left side of neck lower part, with fracture of left clavicle.
(2)Fire-arm lacerated wound 1/2 c.m. x 1/2 c.m. On the left cheek.
(3)Fire-arm lacerated wound 1/2 c.m. x 1/2 c.m. In front of chin.
(4)Fire-arm lacerated wound 1/2 c.m. x 1/2 c.m. On right side of neck.
(5)Fire-arm lacerated wound 1/2 c.m. x 1/2 c.m. On front of left forearm middle part.
Stomach was found healthy and empty. Death was opined to have occurred due to shock and haemorrhage resulting from injury No.1. Time between injury and death was opined to be immediate while the time between death and post-mortem was opined to be within 30 hours.
The same doctor on the same day a 12-30p.m. Had performed autopsy on the dead body of Muhammad Akram and had noted the following injuries:-- (1)Fire-arm lacerated wound margins inverted and black in area of 19 c.m. x 13 c.m. On left side of chest upper part alongwith left side of neck each wound measuring 1/2 c.m. x 1/2 c.m. There were 36 pellet wounds and second rib was also fractured.
(2)Fire-arm lacerated wound 1/2 c.m. x 1/2 c.m. On the front part of the abdomen middle upper part.
(3)Fire-arm lacerated wound 1/2 c.m. x 1/2 c.m. On left side of chest lower part.
(4)Abrasion 3 c.m. x 1 c.m. On left index finger.
Stomach and bladder were found empty and healthy. Death was opined to have occurred due to shock and haemorrhage resulting from injury No.1. Time between injury and death was opined to be immediate while the time between death and post-mortem was opined to be about 30 hours.
During cross-examination, he stated that injuries on Ashiq deceased could have resulted from a single shot.
7. Dr. Saeed Iqbal Khan, who had medically examined Rehmatullah P.W.9 on 6-12-1985 at 2-40 p.m.
Had noted the following injuries on his person:-- (1)Swelling 4 x 4 c.m. On left wrist joint.
(2)Swelling 4 x 3 c.m. Outer side of right elbow joint.
(3)Swelling with abrasion 4 x 3 c.m. On the top of head at back part.
The injuries, which were opined to have been caused within about 24 hours by a blunt weapon were declared simple. During cross-examination, he stated that Rehmatullah could have suffered the injuries at 2-40 p.m. At 5-12-1985.
8. Dr. Ruhi Yasmin, who had medically examined Mst. Rasoolan Bibi P.W.10 on 5-12-1985 at 10-00 p.m. Appeared as P.W.6. She had noted the following injuries on her person:-- (1)Lacerated wound 2 c.m. x 1-1/2 c.m. x muscle deep on innerside of upper lip.
(2)Swelling 4 x 2 c.m. On upper lip.
(3)Swelling 6 c.m. x 6 c.m. On back of left hand.
(4)Abraided swelling 2 x 1-1/2 c.m. On right ring finger.
(5)Swelling 2 c.m. x 1-1/2 c.m. On little finger of left hand (A.P. And lateral view).
The duration of the injuries was opined to be `fresh'. The injuries, which were declared simple were opined to have been caused by a blunt weapon. During cross-examination, she stated that, "by `fresh I mean' within half an hour'.
9. Dr. Manzoor Hussain, who had medically examined Muhammad Hussain (given up P.W.) on 5-12- 1985 at 9-00 p.m. Appeared as P.W.7. He had noted the following injuries:-- (1)Lacerated wound 5 c.m. x 3 c.m. x scalp deep front of forehead.
(2)Lacerated wound 3 x 1-1/2 c.m. x muscle deep on the left ear lower part.
(3)Contused swelling 10 c.m. x 6 c.m. On left shoulder.
(4)Contused swelling around both eyes.
The injuries were opined to have been caused within 48 hours with a blunt weapon and were declared simple.
10. The ocular account was deposed to by Rehmatullah P.W.9 and Mst. Rasoolan Bibi P.W.10.
Rehmat Ullah P.W. Stated that on the day of occurrence he was sitting in the house of his sister Mst.
Rasoolan Bibi after Isha prayers, alongwith Mst. Rasoolan Bibi. His brothers Ashiq and Akram (both deceased), Abdur Rashid, Majid and Waheed sons. Of Mst. Rasoolan, were also there. Iqbal, Karam Hussain, Muhammad Sharif, Rehmat Latif, Liaquat and Bashir (deceased) came there scaling over the wall of the abandoned Khola. Liaquat and Karam Hussain were armed with guns, Iqbal was armed with a carbine, Latif, Sharif and Bashir were armed with Sotas, while Rehmat was armed with a Kassi. They all raised a Lalkara and started firing. Rehmat started digging the roof of the room in which they were sitting. The remaining accused broke open the door of the room. He alongwith other persons came out of the room. Ashiq and Akram were armed with Sotas. Again stated, that Ashiq was armed with a hatchet. His father Muhammad Hussain also arrived there. Iqbal fired a shot from the carbine, which struck his father Muhammad Hussain on the forehead and left ear while the second shot fired by Iqbal struck Akram on the chest, as a result of which he fell down and died. The shot fired by Karam Hussain at Ashiq hit him on the right side of neck, and the shot fired by Liaquat hit Ashiq on the chest, as a result of which he fell down and died. Bashir, Karam Hussain and Liaquat gave injuries to him, Mst. Rasoolan and Muhammad Hussain P.Ws. Akram and Ashiq accused caused injuries to Bashir (deceased) in self-defence. Karam Hussain and Liaqat also sustained injuries during the occurrence at their hands. Bashir (accused) had fallen in the courtyard in injured condition. He was taken away by the accused on a trolley.
11. For motive for the occurrence, he stated that on the day of occurrence Abdur Rashid son of Mst.
Rasoolan had quarrelled at Deegarwela with Iqbal. They were separated by the villagers but Iqbal while leaving, had threatened Abdur Rashid that he will take revenge.
He claimed to have produced before the police gun P.6 and Kassi P.7 belonging to the accused and of having witnessed the collection of 3 crime empties from the spot.
During cross-examination he denied the suggestion that in fact Karam Hussain and Liaquat had gone to the house of Mst. Rasoolan to lodge the protest against her son Abdur Rashid for having teased their sister Mst. Zarina aged 15/16 years on the same day and that Mst. Rasoolan P.W.
Instead of listening to them, had abused them, and called him and his other brothers for help, and that they had caused injuries to Akram son of Liaquat, and that in the meantime Bashir deceased (stepfather of the appellants) had arrived there who had inflicted injuries with gun to Akram and Ashiq in order to save Liaquat and Karam Hussain and that thereafter they had dragged Bashir inside the room and had murdered him. He denied the suggestion that he had made a false statement.
12. Mst. Rasoolan Bibi while corroborating the statement made by Rehmat Ullah in Court, did not state anything about the removal of Bashir (deceased) from the spot. She stated that the accused had run away from the spot alongwith their weapons, leaving a broken gun there and a Kassi at the roof. During cross-examination she stated that the house of her father and brothers was 10-20 houses away from her house. She stated that the accused had fired while standing on the wall also towards them recklessly. She was confronted with her statement Exh. D.A. Before the police and was found to have made a different statement on many counts. She stated that Bashir had not fallen in the courtyard after sustaining injuries. She denied the suggestion that they had concocted a false version in connivance with the police.
13. Mushtaq Ahmad, S.H.O. Who had investigated the case and submitted the challan to Court after arrest of the accused, appeared as P.W.10 and deposed those facts. During cross-examination he stated that he had not asked the residents of the surrounding houses to join the investigation. In answer to another question, he stated that he had not tried to find out as to who had injured Karam Hussain and Liaquat during the occurrence. He admitted that he had gone to the spot to investigate the matter reported in the F.I.R. Lodged by Karam Hussain, at the police station. He stated that according to his investigation, Bashir was murdered in the residential room of Mst.
Rasoolan by Rashid, Wahid and Majid with Chhuris and Bugda. He gave out that Chhuris and the Bugda stained with blood were recovered from them.
14. The appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. Karam Hussain took up the stance as put forth by him in the F.I.R. (No. 39 of 1985) recorded on his statement at the police station at 1-00 a.m. On 5-12-1985. Exh.
D.B. Copy of the said F.I.R. Has been tendered in defence by him. The other two appellants supported his statement. .
15. We have considered the contentions raised by learned counsel for the parties with reference to the evidence on record.
The mere fact that the occurrence had taken place in the house of Mst. Rasoolan P.W., is no guarantee that whatever was stated by her and by her brother Rehmat Ullah, was the truth. It is apparent from the enumeration of facts stated by both the eye-witnesses, noted above, at the trial; that they did not stick to the manner of occurrence reported in the F.I.R. Lodged by Rehmat Ullah. There is quite a lot of differences in the narration of the occurrence given by them at the trial and the narration of occurrence reported in the F.I.R. By l Rehmatullah.
16. The argument of learned counsel for the appellants that the occurrence had not taken place in the manner reported by the complainant party in this case and that the statements of the eye- witnesses do not inspire confidence, in our view, possesses substance. However, learned counsel for the appellants has not been able to convince us that the version put forth by the appellants vide F.I.R. Lodged by Karam Hussain and vide statement made by him under section 342, Cr.P.C.
Was the only reality and whole truth.
17. While going through the evidence to weight and assess the worth of the prosecution version, we noted that the credibility of both the eye-witnesses was at the lowest ebb for the following reasons:
18. The statements of both the witnesses, i.e. Rehmat Ullah and Mst. Rasoolan Bibi stand contradicted by the medical evidence, in that, the following are noteworthy:-- (a)According to both the eye-witnesses their father Muhammad Hussain (given up P.W.) had been caused fire-arm injuries by Iqbal on the forehead and below the left ear. Dr. Manzur Hussain P.W.7 who had medically examined Muhammad Hussain, noted only 3 injuries on his person and had opined all---to have been caused by a blunt weapon.
Muhammad Hussain was medically examined by P.W.7 at 9-00 p.m. On 5-12-1985. The duration of the injuries was opined to be within 48 hours. Obviously the time of infliction of injuries to Muhammad Hussain was much preceding the time of occurrence in question. The statements of both the eye-witnesses, therefore, about their father having suffered injuries during the occurrence and that also by a fire-arm, stand falsified.
(b)Rehmat Ullah P.W.9 (complainant) who claimed to have suffered injuries during the occurrence, was medically examined by Dr. Saeed Iqbal Khan P.W.2 at 2-40 p.m. On 6-12-1985. The duration of three injuries (swellings) found on his person, was opined to be about `within 24 hours'. The doctor during cross-examination stated that he would have suffered injuries at 2-40 p.m. On 5-12-1985.
The hour and date of sufferance of injuries by Rehmat Ullah is, therefore, different from the hour and date of 'the occurrence. Going by the opinion of the doctor, Rehmat Ullah complainant must have suffered the injuries about 30 hours after the occurrence.
(d)Mst. Rasoolan Bibi was medically examined by Dr. Ruhi Yasmin P.W.6 at 10-00 p.m. On 5-12-1985.
The duration of her injuries was opined to be fresh. `Fresh' was explained by the doctor during cross-examination, to be `with him half an hour'. The statement of Mst. Rasoolan Bibi, therefore, stands also falsified qua her own injuries, by the medical evidence.
Both the eye-witnesses at the trial stated that the occurrence had taken place at 9/10-00 p.m. It was 4th of December. The sunset time on that day would have been about 5-15 p.m. Keeping in view the village habits it cannot be believed that Akram and Ashiq would have remained without food till that hour of December night. The stomachs of both of them were found empty at the time of post-mortem examination. Obviously they must have died some time prior to the time of occurrence given by the eye-witnesses. It can be safely inferred that 'the witnesses advanced the time of occurrence in order to cover the gap of lodging late F.I.R. The statements of the witnesses regarding timing also, therefore, stand contradicted by the medical evidence.
18. The enumeration of above contradictions between the medical evidence and the ocular account leaves a lot of smoke behind to doubt the veracity of both the eye-witnesses.
The following points in the evidence, make the authenticity of the ocular account further doubtful:- - (i)The statements of both the eye-witnesses that the whole occurrence had taken place in the courtyard and both the deceased were shot at and had fallen dead in the courtyard, stand contradicted by the site plan, according to which the dead bodies of both the deceased were found lying in the room. Since the S.I. Had collected the blood-stained earth from there, only it cannot be assumed that the dead bodies might have been shifted to the room after the occurrence. The non-collection of blood-stained earth from the courtyard shows that they were not murdered there.
(ii)The assertion of Mst. Rasoolan Bibi during cross-examination that Bashir had caused the injuries to Ashiq and Akram deceased, with the butt of gun, is in direct conflict with the prosecution case that Bashir was armed with a Soti. In fact, Mst. Rasoolan also during her examination-in---chief alleged that Bashir was armed with a Soti. Her assertion that Bashir had inflicted butt blows to Ashiq and Akram also stands contradicted by the medical evidence. In that, the doctor who had performed their autopsies had not found any blunt weapon injuries on the body of any one of them.
(i.e) Both the witnesses made varied statements about the weapons wielded by Akram and Ashiq, which they used in the occurrence. Sometimes they stated that they were armed with Sotas. While answering other questions they stated that Ashiq was armed with a hatchet and Akram was armed with a Sota and also claimed vehemently that both had caused injuries with hatchet to Bashir (deceased).
(iv) The ocular account regarding the version of the complainant does not of inspire confidence from other angles also, in that, none of the witnesses, including the Investigating Officer stated during the trial that the roof of the house was found dug. The claim of Mst. Rasoolan that the accused on having first come to their house had gone up the roof and fired shots from there indiscriminately, stands contradicted by the fact that no empty was recovered from the roof.
19. The stance of the appellants that Akram and Ashiq had died as a result of the firing by their father Bashir, amongst other reasons, is not worth acting upon, for the reason, also, that it is impossible to believe that the complainant party who were quite in a significant number, would have allowed Bashir to use the single barrel gun thrice by reloading the same every time, and murdering their two persons. Even at the cost of repetition, we would like to mention here that according to them one shot fired by Bashir had gone ineffective. He had reloaded the gun and fired the shot at Ashiq and after having reloaded the gun again had tired at Akram, and it was thereafter that he was caught by the men of the opponent party and done to death. If the complainant party was vigilant and desperate enough to catch a person after having lost the lives of two persons, they could well have intervened and caught Bashir after he had fired the first shot and started reloading the gun.
20. In the light of the above circumstances, unhesitantly, we have come to the conclusion that herein is a case where both the parties have not come up with complete details and have not only tried to hide and minimise the role played by them but have made best of their efforts to enhance and highlight the acts done by the other party. In fact, it is a classic case in that regard. Herein, the complainants burdened their two deceased to have committed the murder of Bashir from appellants' side, while the appellants have put the burden on the shoulders of their deceased father to have murdered two persons of the complainant's family.
After having anxiouly applied our mind, we are of the view that it is a fit case where the principle laid down in Syed Ali Bepari's case PLD 1962 SC 502 of reconstructing the crime, needs to be followed. The following observations of their Lordships of the Supreme Court, in that judgment are worth quoting:-- "-----Parties do not generally come out with true story---Incompleteness of tale should not deter Court from drawing proper inferences from evidence and circumstances---"
Keeping in view the above principle, we considered the motive for the occurrence mentioned by both the parties, and the possible manner in which the occurrence would have taken place.
21. The complainants although stated that the occurrence had resulted due to a quarrel that had taken place between Iqbal and Abdur Rashid on the same day at Deegarwela, yet did not disclose the exact matter over which they had quarrelled. According to the appellants the cause that had led to the occurrence was that Abdur Rashid a son of Mst. Rasoolan P.W. Had teased their sister Mst.
Zarina aged 15/16 years and they had gone to lodge protest with the mother of Abdur Rashid. We are of the view that the quarrel between Iqbal and Abdur Rashid had taken place because of the indecent act of Abdur Rashid of teasing the sister of Iqbal, and it was thereafter that Bashir father of the appellants had gone to lodge protest where Mst. Rasoolan P.W. Called her relatives as well, and there on account of something they started beating Bashir, while sitting in the room and on his noise the appellants went there and broke open the door to save their father, and fired shots, which hit the two deceased resulting in their death. In fact the appellants might have followed Bashir, and might have been waiting outside the house of Mst. Rasoolan, and therefore, reached there, no sooner they heard the cries of their father Bashir.
We believe that it was on account of the occurrence having taken place m such a manner that the complainants did not report the matter at the police station after the occurrence was over, and statement was made by Rehmat Ullah only after the police had arrived at the spot.
The explanation given by Rehmat Ullah .In that regard that they could not go to the police station to report the occurrence, as the accused had continued firing even after the occurrence, does not find support from anything on record. No empties were found from anywhere near the place of occurrence. Moreover, since the appellants had gone with their father, who could there be, who would have continued firing.
22. Yet the other factor worth taking note of is that the police in spite of the registration of cases from both the sides appeared to be perplexed and remained so for the whole first day, i.e. 5-12- 1985. We have observed that on the basis of the fact that post-mortem of the dead bodies of Akram and Ashiq was performed on the day following 5-12-1985, after 12-00 noon. Had the parties come forth with truth or had the police been clear as to how to proceed with the case, they -would have not delayed, the sending of the dead bodies to the mortuary which was only at a distance of 8 miles. Had that been done, the post-mortem would have been performed on the same day, i.e. 5-12-1985.
23. The deaths of Akram and Ashiq that occurred in such a manner of I occurrence cannot be termed as intentional murders because the firing was done by the appellants in order to save their father Bashir who was under assault (in fact he died of those injuries). The convictions of the appellants under section 302/34, P.P.C. And the sentences awarded thereunder, are not sustainable. The same are set aside. They are, instead held liable for having committed the offence under section 304, Part I, P.P.C. Read with section 34, P.P.C., and are convicted accordingly.
Iqbal and Liaquat appellants are sentenced to undergo R.I. For ten (10)1 years each, plus to pay a fine of Rs.3,000 (Rs. Three thousand) each in default whereof to suffer further R.I. For one year each.
They shall be given benefit of the provisions of section 382-B, Cr.P.C.
24. Karam Hussain appellant was found suffering from Pulmonary Tuberculosis and Diabetes Malitus, as per report submitted by the Medical Superintendent. The said report was called for when he moved for suspension of his sentences on the ground of ailment. It is also on record that he was admitted to Jail Hospital for treatment of Pulmonary Tuberculosis. He had appeared before us on 17-3-1991 during the hearing of appeal and he was walking with great uneasiness, and claimed having lost his eye-sight considerably due to the ailment. Before being released on bail after suspension of his sentences, on 13-1-1990, he had undergone 1-1/2 years' R.I. And suffered 2-1/2 years' detention in jail during the trial. We are of the view that in his case the sentence of imprisonment already undergone, plus a fine of Rs.3,000 (Rs. Three thousand), in default whereof to suffer` one year's R.I., will meet the ends of justice. Order accordingly.
He shall deposit the fine within 30 days. In case of failure, he shall be caused to be arrested through non-bailable warrants and lodged in jail for undergoing the sentence awarded in lieu of non- payment of fine.
Death sentences not confirmed.
[6-4-1991].--- The appellants in the above-noted appeals were convicted under sections 302/34 and 449/34, P.P.C. And awarded various sentences. Vide judgment dated 18-3-1991 the convictions and sentences of the appellants under section 302/34, P.P.C. Were set aside and they were, instead, convicted under section 304, Part I, P.P.C. And sentenced to various terms of imprisonment, plus fines.
2. After signing the judgment it came to our notice that no specific order was passed regarding the convictions and sentences of the appellants under section 449/34, P.P.C. We decided to reset the case for examining the proposition.
3. We have heard counsel for the parties today.
4. Mode of delivering judgments is laid down in Chapter 26 of the Code of Criminal Procedure.
Section 369, Cr.P.C. Which is relevant for the proposition, reads as follows:-- "369--- Save as otherwise provided by this Code or by any other law for the time being in force, or in the case of a High Court, by the letters patent of such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error:"
Alter or review connotes reversing an order of allowing the appeal or dismissing the same. It would also include reduction or enhancement of the sentences ordered in the judgment of the trial Court or the Appellate Court. So also will it include the change in the sections for which the accused are convicted. That being so, no order can be passed which can amount to reversing the judgment in appeal vis-a-vis convictions and sentences under section 449/34, P.P.C. The fact of no specific order having been passed regarding such convictions and sentences obviously means that they have been maintained. -To say so, in our view, does not amount to altering the judgment nor does it review the same. The judgment dated 18-3-1991 passed in appeal, shall tantamount to mean that the appeal qua these convictions and sentences stands dismissed. The sentences awarded under section 449/34, P.P.C. Shall run concurrently with the sentences awarded under section 304, Part I, P.P.C.
5. We may note here that there are reported and unreported judgments of this Court whereby the convicts whose appeals were dismissed, were allowed the benefit of the provisions of section 382- B, Cr.P.C. Vide separate orders on the applications submitted by them even after the announcement of judgments. After hearing the State. Such orders passed are neither considered alteration of the judgment nor review of the same. In fact, they are passed to give effect to the legal proposition. Similar is our view, is the position about the proposition, which occurred in this appeal.