K. M. A. SAMDANI, J.-This judgment will dispose of Murder Reference No. 189 of 1971, Criminal Appeal No. 599 of 1971 and Criminal Revision No. 1.077 of 1971, all arising from the judgment dated 19th of August 1971, of Ch. Abdul Majid, Additional Sessions Judge, Gujrat, whereby he convicted all the four appellants, namely, Bahawal aged 60 and his three sons Mutalli aged 28, Karam A.I aged 24 and Khizer Hayat aged 1.6, under section 302, P. P. C. Read with section 34 of the same Code and sentenced Mutalli appellant to death and the other three appellants to transportation for life for the murder of N4sibammad Aslam deceased, a young man of 25.
Criminal Revision No. 1077 is by Atta Muhammad P. W., the father of the deceased who prays that the sentence of transportation for life awarded to three of the four appellants be enhanced to death.
2. The prosecution case is as follows:- Muhammad Aslam deceased was suspected of having established an illicit liaison with the wife of Mutalli appellant. About a week before the murder in question, Mutalli appellant had quarrelled with Muhammad Aslam deceased on that account. However, nothing serious happened on that occasion. But on the 15th of August 1968, at dopehrwela, Muhammad Aslam deceased was intercepted by the appellants on his way to his house from the pasture where be had taken his cattle for grazing. His father Atta Muhammad' P. W. Was following him at some, distance. All the four appellants were ;armed with lathis and each one of them dealt one lathi blow to the deceased, two of which landed on his head` and consequently the deceased fell down unconscious. Even after the fall KhizarHayat and Mutalli appellants allegedly dealt two more lathis blows to the released on leis left leg. The resultant hue and cry attracted Salehon P. W. And one Ghulam Nabi who witnessed the occurrence as did Atta Muhammad P. W. And rescued the deceased. The deceased was then taken to hospital unconscious where he was medically examined and at 7.00 p.m. The same evening Atta Muhammad P. W. Reported the incident to the police and produced the medical report. However, thinking that no cognisable offence had been committed the police merely entered the report in the police diary and did not register a case. The deceased succumbed to his injuries on the 16th of August 1968, at 3.00 p.m. Whereupon the report of Atta Muhammad P. W. Was converted into an F. I. R. And a case under section 302/34, P. P. C. Was registered on that day at 8.30 p.m. In the course of investigation the police recovered one dang from each appellant with the exception of Khizer Hayat from whom no recovery could be effected. But the longs recovered from the appellants were not found stained with blood although it is in evidence that the deceased had bled. Therefore, the recovery of dangs does not connect any of the appellants with the crime.
3. Thus the only evidence against the appellants on record is the testimony of the eye-witnesses.
Out of the three eye-witnesses mentioned in the report Ghulam Nabi having died even before the commencement of the injury, the prosecution could examine only two, namely, Atta Muhammad the father of the deceased and Salehon a nephew and son-in-- law of the said Atta Muhammad.
Now, the defence version is that Karam A.I appellant alone had an encounter with Muhammad Aslam deceased. The latter was armed with a hatchet who hit and injured Karam A.I appellant therewith. Some persons present at the scene rescued Karam A.I appellant and, in the process inflicted a few injuries on the deceased as a result of which he subsequently died. The involvement of the other appellants was totally denied and Bahawal appellant alleged enmity with the family of the deceased.
The doctor who had examined the injuries sustained by Karam A.I appellant was examined as the sole defence witness who proved that at about the same time as the deceased had been attacked, Karam A.I appellant sustained an incised wound 3/8" x 5/8` on the inner side of the back of the lower third of the right fore-arm. He further stated that a-radiological examination of the injury revealed "a complete cut fracture" of the lower third of the radius.
It is also an admitted fact in this case that Bahawal appellant reached the police station while the statement of Atta Muhammad P. W. Was still being recorded and lodged his own complaint in respect of the grievous hurt caused to his son Karam A.I appellant whereupon a case under section 326/34, P. P. C. Was registered.
4. When, in the light of the defence evidence and the admission of P. W. Abdul Razzaq A. S. I. That a case was registered in respect of the injury to Karam A.I appellant, we scan the testimony of the two eye--witnesses, we find that Atta Muhammad P. W. Not only failed to mention the injury of Karam A.I appellant in his initial report but expressed his ignorance even while appearing as a witness at the trial as to whether Muhammad Aslam deceased had struck Karam A.I appellant with a hatchet although the other eye-witness, namely, Salehon, admitted that the deceased had dealt a kulhari blow to Karam A.I appellant while he was himself being belaboured. In view of this inconsistency in the prosecution evidence the testimony of Atta Muhammad P. W. Deserves no credit.
As for Salehon P. W. His version of the incident before the trial Court was that the deceased had wielded his hatchet only after having been hit twice on his head. But the possibility of the deceased being able to use his hatchet after having sustained the head injuries which ultimately resulted in his death was ruled out by the doctor who had examined the deceased. Further, Salehon P. W.
Stated before the Committing Magistrate that the deceased had been injured after he had given the hatchet blow but when confronted with that statement at the trial, he disowned it.
It is, therefore, clear that this witness is no more reliable than Atta Muhammad P. W. Such being the state of the ocular testimony on which alone rests the prosecution case, it is not possible to maintain the convictions of the appellants.
5. Judging from the injuries sustained by Karam A.I appellant and the deceased it appears that the position takes by Karam A.I appellant in his statement before the trial Court is more plausible i.e. The deceased attacked Karam A.I appellant first and then some persons other than Karam A.I appellant attacked the deceased. It is obvious that after having sustained grievous hurt on the right fore-arm, Karam A.I appellant could not have tackled the deceased by himself. The other Persons who attacked the deceased may be the other three appellants. But even if it be assumed that Bahawal, Mutalli and Khizar Hayat appellants dealt one or two blows each to the deceased with their lathis after Karam A.I appellant had been attacked and injured by the deceased, they were well within their right of private defence to do so in order to prevent Karam A.I appellant from being done to death. Since the weapons used were lathis and only six blows were dealt in all out of which only two on a vital part, the appellants cannot be said to have acted in a cruel or' unusual manner and so they cannot be held to have exceeded their right of private defence.
6. In short, for the reasons recorded above, we hold that the prosecution has failed to bring home the charge of murder to the appellants. Accordingly, we decline to confirm the sentence of death, accept the appeal, set aside the convictions and sentences of the appellants, acquit them and dismiss the revision petition.