MUHAMMAD SIDDIQ, J.-According to the prosecution version three or four days before the present occurrence a herd of sheep belonging to Bad appellant trespassed into the field of Saleh Muhammad P. W. His son Inayat gave beating to Bati for this trespassing. On 9-9-70 at about Peshiwela, Nadir deceased went to cut Bajra fodder for the cattle from Killa No. 9 of square No. 20 which was close to the Sem Nala. It is alleged that the present appellants alongwith Murad (acquitted co-accused) attacked Nadir deceased. Bati and Bashir appellants were armed with spears, Ghulam Rasul had a hatchet while Muhammad and Shera appellants were armed with sofas. Murad (acquitted co-accused) was armed with a hatchet. All the accused persons attacked Nadir deceased who raised a raula which attracted his brother Saleh Muhammad (P.W. 8).
Salehoon (P. W. 9) and Nazir (P. W. 10). The accused persons inflicted injuries to the deceased with their 'respective weapons. Saleh Muhammad (P. W. 8) also received injuries. Two accused persons namely Shera appellant and Murad (acquitted co-accused) also received injuries during the same fight. After the occurrence, Nadir deceased was taken towards Phalia Civil Hospital but he succumbed to his injuries on the way. He was therefore, taken to Police Station, Phalia instead of hospital. Saleh Muhammad (P. W. 8), who is the brother of Nadir deceased, lodged-- F.I.R. (Exh. P.
A/1) at 7 p. m. On 9-9-1970 at Police Station, Phalia, which was recorded by Muhammad Amir Sub- Inspector. The Investigating Officer prepared the injury statement of the deceased (Exh. P. M.) and inquest report (Exh. P. M.) and sent the dead body to the mortuary for post-mortem exami--nation.
He also found injuries on the person of Saleh Muhammad P. W. And, therefore, prepared his injury statement (Exh. P. L.). He then proceeded towards the place of occurrence where he reached at about 10 p. m. On the same day. He took into possession blood-stained earth from the place of occurrence vide memo. Exh. P. D. And sealed it into a parcel. He also picked up sickle (Exh. P. 3) and chadar (Exh. P. 4) from the spot vide memo. Exh. P. E. The Investigating Officer then took into possession danda (Exh. P. 5) from the spot side memo. Exh. P. F. He arrested Murad and Shera accused on 10-9-1970, while Muhammad, Ghulam Rasul and Bati were arrested on 11-9-1970. Bashir accused was arrested on 13-9-1970. Ghulam Rasul accused produced his hatchet (Exh. P. 6) before him on 13-9-1970 vide memo. Exh. P.G. Bati accused also led to the recovery of his barchhi (Exh. P. 7) from his cotton field vide memo. Exh. P. H. It -was made into a sealed parcel. As a result of the interrogation, Bashir accused led to the recovery of his spear (Exh. P. 8) from his Khola vide memo.
Exh. P. J. Chadar (Exh. P. 1)of Nadir deceased was produced by the Foot Constable vide memo. Exh.
P. B and Kurta. (Exh. P. 2) of Salehoon P. W. Was produced before the Investigating Officer vide memo. Exh. P. C. He also got site plan (Exh. P. K.) prepared by the Patwari and put marginal notes in red ink in his hand. Afar the usual investigation, the police challaned all the six accused persons including the present appellants under section 302/323/149/148, P. P. C. They were tried by the Sessions Judge, Gujrat, who vide the impugned judgment dated 5-2-1971 convicted the present appellants under sections 148, 302/149 and 323/149, P. P. C. And sentenced Bati appellant under section 302/149, P. P. C. To death and Bashir, Ghulam Rasul; Muhammad and Shera appellants to transportation for life. All the appellants were further convicted under section 148, P. P: C. And sentenced to one year's rigorous imprisonment each. They were further sen--tenced to six months' rigorous imprisonment each under section 323/149, P. P. C. All the sentences were ordered to run concurrently except that of Bati appellant which was to run concurrently only in ca; his sentence of death was not confirmed by this Court. Murad (co-accused) was, however, acquitted by the learned Sessions Judge. The present appellants have challenged their convictions and sentences through the present appeal. The case of Bati appellant is also before us under section 374, Cr. P. C.
For confirmation of the sentence of death. This judgment will dispose of both the Criminal Appeal as well as the Murder Reference.
2. The appellants when examined under section 342, Cr. P. C. Denied the prosecution allegations and stated that they were falsely involved due to suspicion and enmity. Shera and Murad accused persons when asked about the injuries on their persons, stated that while in police custody the police caused those injuries to them. However, they did not produce any defence evidence.
3. Dr. Nazir Ahmad Anwar on 10-9-1970, at 7 a.m. Performed the post-mortem examination on the dead body of Nadir deceased and found the following injuries:-
(1) An incised wound, 2----- x 1/8', x bone deep over the left side of the head, oblique in direction, just behind the hair line.
(2) An incised wound, 1----- x 1/6' x bone deep transverse in direction, over left temporal region of the head. ,
(3) An eliptical penetrating incised wound, 2' x 1/2' x going into the abdomen, 3' of the small intestines coming out of the wound. The wound was over left side of the back 4' away from the midline of the back. On dissection the injury was cutting the outer head of spleen 1/2' x 1/2' x 1/2', stomach 1/2' x 1/2', diaphragm 1/2' x --', posterior wall of the heart, 1/6' x 1/8'. About two pints of blood was present in the peritoneal cavity.
(4) Contusion mark with swollen area, 1/2' x 1/2" over the right side of the nose.
All the organs of the body were healthy except the injuries noted above Intestines contained gases and faecal matter. The bladder contained 3 ozs. Of urine.
Death was most probably occurred due to haemorrhage and shock caused by injuries Nos. 1 to 3.
Injury No. 1 was caused by sharp-edged Weapon, injuries Nos. 2 and 3 by sharp-pointed weapon and No. 4 by blunt weapon injuries Nos. 1 to 3 were sufficient to cause death in the ordinary course of nature and time. All the injuries were ante-mortem in nature.
Probable time between Injuries and death was about two hours and between death and post- mortem was 12-16 hours.
On 9-9-1970 at 8-30 p.m., the same doctor examined Saleh Muhammad P. W. And found the following injuries on his person:-
(1) Semi-circular contused wound 1----- x 1/4" x 1/4" over the left side of the head.
(2) Contusion mark, 2" over the right shoulder. Injury No 1 was kept under observation which was later on declared simple. Injury No. 2 was also simple. Both the injuries were caused by blunt weapon with the duration of 3 to 6 hours.
On 10-10-1970 at 5-15 p.m. The same doctor also examined Murad (acquitted co-accused) and found the following injuries on his person
(1) A contused wound, 1" x 1/6" x 1/6" over the top of the head, longitudinal.
(2) A contusion mark 1/2" x 1/2" over the left shoulder.
Both the injuries were simple, caused by a blunt weapon and within the duration of 24 to 30 hours.
The doctor also examined Shera appellant and found the following injury on his person:-
(1) A contused wound, 1----- x 1/8" x 1/8", over the left side of the head.
This injury was simple and closed by a blunt weapon within the duration of 24 to 30 hours. ,
4. In support of its case the prosecution produced three eye-witnesses namely, Saleh Muhammad (P. W. 8). Salehoon (P. W. 9, arid Nazir (P. W. 10). Saleh Muhammad P. W. Is the real brother of Nadir deceased, while no relationship has been proved of the other two eye-witnesses with the deceased. Although Saleh Muhammad (P. W. 8) is closely 'elated to the deceased, yet his presence at the spot cannot be denied, as he received in--juries on his person during the same fight.
According to him, 3/4 days before the present occurrence Bati's sheep trespassed into his field on which his son Inayat gave a beating to Bati appellant. This is said to be the motive of the present occurrence which took place on 9-9-1970 at peshiwela when Nadir deceased was going to his field to cut bajra fodder for the cattle. He was attacked by all the six accused persons who were armed with different weapons like the spears, hatchets and dandas. This witness has narrated how the deceased was caused injuries by various accused persons with their respec--tive weapons. He has also explained his own injuries. According to him, the deceased in order to defend himself before he fell down on the ground had caused injuries to Shera and Murad accused with his sickle.
He has further supported the prosecution version how the deceased was taken to the police station and the F. I. R. Was lodged. His version is supported by Salehoon (P. W. 9) and Nazir (P. W. 10). The learned counsel for appellants tried to argue that Salehoon P. W. Was related to the deceased.
According; to the learned counsel, Shah Muhammad is the father-in-law of Salehoon as well as Nadir deceased. No doubt it is admitted by Salehoon that Shah Muhammad is his father-in-law. It is further admitted by Saleh Muhammad (P. W. 8) in cross-examination that Mst. Fatima is the daughter of Shah Muhammad, father-in-law of his brother Nadir. However, Saleh Muhammad, has cate--gorically stated that Salehoon (P. W. 9) is not his relative. It appears that the name of father- in-law of the deceased and Salehoon (P. W. 9) is the same, namely, Shah Muhammad. The defence, however, failed to prove that he is one and the same person. It is possible that there are two different persons having the same name. The defence has not put direct question to these witnesses. It is in an indirect manner that the defence is trying to get benefit of this name Shah Muhammad. However, in view of categorical denial by Saleh Muhammad (P. W. 8) that Salehoon is not his relative, we are not inclined to agree with the defence suggestion that Salehoon is related to the deceased. On the other hand, we find that both Salehoon and Nazir P. Ws. Are quite independent witnesses. The defence has not been able to shake their testimony or otherwise bring on record any material to show either their interest in the complainant party or their enmity towards the accused party. We are in the circumstances inclined to believe all the three eye-- witnesses. The testimony of Saleh Muhammad (P. W. 8) is fully corroborated by Salehoon and Nazir P. Ws.
5. As mentioned earlier, apart from Nadir deceased, several other per--sons also received injuries during the same fight. It is an admitted fact that Saleh Muhammad P. W., Murad (acquitted co- accused) and Shera appellant received injuries during the fight. According to the version given in the F. I. R. The two accused received injuries at the hands of their own com--panions. However, before the trial Court Saleh Muhammad (P. W. 8) has stated that Nadir deceased used his sickle to defend himself before he fell on the ground and thus caused injuries to Murad and Shera accused person. We have examined the sickle and the nature of the injuries caused to these persons and we are clearly of the view that these injuries were not caused by the deceased with his sickle. It may be observed that the F.I.R. Is com--pletely silent about any injury being caused by the deceased with his sickle before he fell down. It is not clear how the deceased used his sickle, namely, whether he used the blunt side or the other side of it. After careful exami--nation of the entire material available on the record we are of the view that all these persons received injuries in a1sudden fight in the heat of passion upon a sudden quarrel. In this behalf our conclusion is supported by the fact that the accused party had no motive against Nadir deceased. In the earlier incident it was Inayat son of Saleh Muhammad P. W. Who had abused and given beating to Bati appellant. The prosecution has not placed any material to show that the appellants had any grievance against Nadir deceased. If it had been pre-planned or pre-arranged fight, then the victim of the attack of the accused party should have been Inayat or his father Saleh Muhammad.
The only possible explanation that Nadir deceased died in this incident is that it was a sudden fight between the two parties in which both the parties received injuries and one of them died. The injuries on the persons of two accused also support this conclusion. It seems that the prosecution witnesses deliberately suppressed this aspect of the case from the very beginning. If the accused party had pre-planned this attack, their victim should have been different and they should have selected different time and place for the same. The learned counsel for the State has not been able to explain why the accus--ed party made Nadir deceased the victim of their attack and did, not take revenge from Inayat or his father Saleh Muhammad P. W. In the absence of premeditation, the only possible conclusion is that at the spur of moment something must have happened which resulted into sudden fight. Accordingly, the have come to the conclusion that this is not a case of pre-planned murder, but is covered by Exception IV to section 300, P. P. C. The conviction of the appellants under section 302/149, P. P. C. Has, therefore, to be set aside. Thus, while believing the prosecution version we alter the conviction from section 302/149, P. P. C. To one under section 304, Part I, P. P. C.
6. The upshot of the above discussion is that the conviction of the appellants under section 302/149, P. P. C. For the murder of Nadir deceased is set aside and instead bati, Bashir and Ghulam Rasul appellants are con--victed under section 304, Part I, P. P. C. Bati appellant is sentenced to imprisonment for life, while Bashir and Ghulam Rasul are sentenced to ten years' rigorous imprisonment each under section 304, Part I, P. P. C. The convictions and sentences of Bati and Bashir under sections 148 and 323/149, P. P. C. Are set aside. The conviction of Ghulam Rasul appellant under section 323/149, P. P. C. Is altered to one under section 323, P. P. C. For caus--ing injuries to Saleh Muhammad P. W. And his sentence of six months' rigorous imprisonment is maintained. These sentences shall, however, run concurrently. His conviction and sentence under section 148, P. P. C. Are set aside. The conviction of Muhammad appellant under section 323/149, P.
P. C. For causing simple injuries to Nadir deceased is altered to one under section 323, P. P. C. And his sentence of six months' rigorous imprisonment is maintained. Similarly, the conviction of Shera appellant under section 3.3/149, P. P. C. For Causing Simple injuries to Saleh Muhammad P. W. Is altered to one under section 323, P. P. C. And his sentence of six months rigorous imprisonment is maintained. The convictions and sentences of Muhammad and Shera appellants under sections 302/149 and 148, P. P C. Are set aside. Since Muhammad and Shera appellants have already under- -gone the period of their imprisonment under section 323, P. P. C. They shall be set at liberty forthwith if not required in any other case. The sentence of death imposed upon Bati appellant is not confirmed. This appeal stands disposed of accordingly.
7. Bati and Bashir appellants have also filed separate appeals (Cr. As. Nos. 162 and 163 of 1972) against their convictions under section 13/20/65 of the Arms Ordinance. Each one of them was sentenced to six months' rigorous imprisonment. Since we have believed the prosecution version in the main case for causing injuries to the complainant party with the unlicensed weapons, we also maintain their convictions and sentences under the Arms Ordinance. However, the sentences under the Arms Ordinance will run concurrently with their sentences awarded under section 304, Part I, P. P. C. These two Criminal Appeals Nos. 162 and 163 of 1972 are accord--ingly dismissed.