MUHAMMAD HALEEM, J.--Appellant Haji Kumbhar and , Siddiq were tried for the murder of Ghazi Kumbhar, convicted under section 302/34, P. P. C. And both sentenced to death by the learned Additional Sessions Judge, Nawabshah, vide judgment dated 20th October 1973. They have appealed to assail their conviction and sentence while-the learned Sessions Judge has referred their case for confirmation of death sentence. This judgment will dispose of the appeal and the reference.
2. According to the prosecution case, the incident occurred at 5-15 p.m. On 29th December 1972, in front of the railway goods office, Daur. Both the appellants are soldiers in the Pakistan Army and had come on casual leave. While Haji Kumbhar resided at Daur, Siddiq resided in a village in taluka Sakrand. Soomar himself resided with his mother in the town of Bucheri. The deceased, who was his elder brother, resided with his father---in-law Sultan Khan in the same house in village Allahwarayo Khoso. The nieces of Sultan Khan were married to the brothers of Muhammad Yousuf Kumbhar who were the uncles of appellant Haji. Mst. Khatijan, sister of appellant Haji, who was married to Ibrahim lived with him in village Kauro Khan about 3 miles away, Siddiq was a Punjabi and by case a Jat. A day before the incident, Mst. Maryam went to visit her son, the deceased. The next day at noon, Soomar and his sister's husband, Faqir Muhammad, also proceeded to the house of the deceased, where he saw Sultan, his son Umar, and the two appellants. After some time Umar asked the deceased as to whether he would go to Daur Cotton Factory, to which he replied that he would go after an hour. Hearing this reply, Sultan, Umar and the appellants went out of the house and while Sultan and his son came back, the other two did not. The deceased then stated that he had some work at Daur Cotton Factory and asked Soomar and Faqir Muhammad to accompany him and on the way Soomar and Faqir Muhammad sat down to urinate, the deceased went ahead on Bandhi Road. Soomar and Faqir Muhammad thereafter rose and followed him and within moments they heard cries of his brother in front of the hotel of Behram and saw the two appellants, of whom Haji was armed with a `churra' and Siddiq with a `khurdam' and while Haji stabbed him twice or thrice with his churra Siddiq caused him khurdam blows. Hearing the commotion, Behram challenged the appellants and in the meantime many other persons also came running and with their help they captured the appellants. 7 he deceased, in the meantime, fell down and became senseless. He had both churra and khurdam injuries on his person. The appellants with their weapons were taken to Police Station Daur, about 3 furlongs away, where Soomar lodged the F.I.R.
At 18-00 hours. The motive for his murder is said to be a suspicion entertained by Haji about 2 or 3 years before about his sister Khatijan having illicit relations with the deceased.
3. After recording the F. I. R. A.I Muhammad A. S. I. Took into possession churra and khurdam produced by Soomar and detained the appellants. He then went to the wardat, where he saw the deceased in a precarious condition. He, therefore, sent him to Daur dispensary for examination and treatment. Thereafter he searched the person of Haji and secured from him a purse containing a leave certificate, four photographs, a wrist watch, Rs. 7 in currency notes and a 'mian' from the folds of his trousers. He then seized his blood-stained shirt and shalwar. Again, from the personal search of Siddiq a purse was secured containing Rs. 17 in currency notes, two tickets from Lahore to Nawabshah, a leave certificate and also a pen knife. His shalwar was blood-stained which was also secured. All these articles were taken into possession vide mashirnama, Exh.
12. The leave certificates are exhibited as 13 and 14. He then recorded the statements of Fakir Muhammad and Behram at the police station. The deceased expired soon after and his body was seat to District Headquarters Hospital, Nawabshah for post-mortem examination. From the wardat, blood-stained earth was secured at a distance of 80 paces from the hotel. On the next day, he recorded the statements of Sultan, Umar, Mst. Khatijan and Mst. Maryam. The blood-stained articles, except khurdam, were sent for chemical analysis. Of the two shalwars blood on one had disintergrated, but the other was stained with human blood and so also the shirt, churra and the earth.
4. Dr. Muhammad Soomar performed autopsy on the dead body and found the following injuries:- "(1) Punctured incised wound 1" x --" x pleura deep near the right first costo sternal junction which has fractured the first rib.
(2) Punctured incised wound 1" x 1/4" x. Paritonial deep over the right coastal margin 2" away from the xlphonic process of the sternum.
(3) Punctured incised wound 2/3" x 1/4" x paritonial deep 3' above the umbilicus.
(4) Punctured incised wound 1--" x 1/3" x paritonial deep over the abdomen 3' lateral to the umbilicus a small loop of small intestine is protruding from that wound.
(5) Punctured incised wound 1" x 1/4" x pleura deep over the back of chest 3' below the inferior angle of the left scapula.
(6) Punctured incised wound 1" x 1/4" x pleura deep over the back of chest on the left side 2--- lateral to the injury No. 5. ,
(7) Incised wound 1" x 1/4" x muscle deep over the back of the middle of the left forearm."
5. The appellants denied the prosecution case and alleged their implication in the case due to enmity. Haji pleaded that Mst. Khatijan is married anal is living happily with her husband and that at no time he had suspected her to be immoral. He also gave out that he was serving in the Pakistan Armed Forces and had come on leave and that he was arrested from the railway station at 10 p.m. And brought to the police station, where he was maltreated with a view to give a confession. The beating was so severe that he bled from his nose. He also alleged enmity with Faqir Muhammad and Soomar over matrimonial affairs and as for Behram he stated that he was their close friend and for this reason he was supporting him. The mashir, Abdur Rehman, was said to be a police witness and that all of them had joined hands to implicate him. Appellant Siddiq also stated that he was arrested from Daur Railway Station late at night where he had gone to board the train for returning to his house situated in taluka Sakrand As for his implication in the crime, he stated that being under the erroneous belief that he was a friend of Haji, who had enmity with the prosecution I witnesses he was falsely implicated in the case.
6. The prosecution examined Soomar, Faqir Muhammad and Behram to furnish direct evidence in the case. The learned counsel for the appellants mainly contended that Siddiq could not be held to have shared the common intention with the other appellant in committing the murder of the deceased. In this context he referred to the suspicious features in the evidence to support his view.
While in the F. I. R., suspicion was expressed that Sultan and Umar had also conspired with the appellants to kill the deceased; nonetheless, Soomar, in cross-examination, denied having stated so in the F. I. R. He also denied the suggestion that the relations between Sultan and his deceased son-in-law were not cordial. An attempt to implicate the two cannot be denied, but finding that it would be difficult to establish such a charge, for the deceased had been living with Sultan in his house as 'ghar damad', there would be no apparent reason for Sultan to get him murdered.
Realising his folly, Soomar changed his stand at the trial, which cannot, but be looked with suspicion. Again, while in the F. I. R. It was stated that when be and Faqir Muhammad went to the house of the deceased he saw the appellants there but at the trial, this stand was not adhered to and what is stated is that the appellants came afterwards and after talking to Sultan they went away. There is no mention of the fact that all the four had gone out and thereafter Sultan and Umar came back while the appellants did not. Even the talk of visiting Daur Cotton Factory does not appear to have taken place in the presence of the appellants, while it is so stated in the F. I. R. Such being the stand at the trial, it is not possible to conceive that the two appellants had premonition of the deceased's visit to Daur Cotton Factory later on in the course of the day. One other feature of singular significance is that Siddiq is attributed the role of having caused khurdam blows to the deceased, but no such injury was observed by the doctor. Obviously a false part is assigned to Siddiq. The trial Court has nonetheless accepted this version and held: "As I have already stated above, the injuries caused by khurdam may not have been so prominent so as to attract the attention of the medical officer."
We had sent for the khurdam for own examination and we found it to be a long stick-like thing with one end having a heavy ball like attachment. We fail to see how no impression would be left with a weapon of such a nature as is held by the learned Judge in spite of the opinion of the doctor that no such injury was observed. Again, in the F. I. R. There is a feature of prominence, namely that of premeditation, which seems to have lost its importance at the stage of the trial, for if that was so, then the two appel--lants would not have waited at a busy locality for killing the deceased but would have rather on the way attacked him, which is more consistent with such conduct. The other two witnesses, namely Faqir Muhammad and Bahrain, have also attributed to Siddiq the role of causing blows with khurdam to the deceased, which is again on the same footing and merits no value. As for the presence of Siddiq alongwith Haji, there can be no doubt. As the evidence stands, both of them were captured at the spot, but the question remains as to whether Siddiq could, by reference to common intention, be held responsible for the murder of the deceased. From the infirmities in the evidence of Soomar pointed out above and taking into consideration his admission in cross-examination that he had not stated in` the committal Court about Siddiq and Haji having come to the house of Sultan on the day of the incident, it is not possible at all to accept the stand that by sheer co-incidence the appellants had also come to see Sultan when Faqir Muhammad has avoided mentioning their presence saying that he stayed in the adjacent room with the deceased and had not gone to the place where Sultan was, meaning thereby that he could not say as to whether the two appellants had at all come to the house. Thus the meeting of the appellants with the deceased cannot be by any design and in the absence of any injury having been caused by Siddiq it is not possible to hold that he would have shared the common intention.
What is likely is that being friends, they had by chance met the deceased and of the two, Haji must have on the spur of the moment caused churra blows to the deceased without the other even knowing what Haji was about to do. The injuries on the, deceased also suggest that four of them were caused from infront while three from behind, which shows that either he was first attacked from behind or alternately from infront and one set of such injuries must have been caused after the deceased had fallen. In the F. I. R. Soomar has spoken of 2 or 3 churra blows but did not say as to whether they were caused from Infront or from behind. Faqir Muhammad has merely stated about Haji causing injuries with his churra and the same version is given by Behram. Behram in cross-examination, has stated that three churra blows were given. Apparently, it shows that they must have seen the latter blows but not the earlier ones. There is, therefore, nothing to show that Siddiq could have at all shared the common intention at the time Haji attacked the deceased. As for the blood on the shalwar of Siddiq, it must be that which had spurted out from the injuries of the deceased which had profusely bled, but that feature in no way incriminates Siddiq while evaluating his part in the crime. There is, however, no doubt that it was Haji who had caused the fatal blows to the deceased. The F. I. R. Was lodged without any delay and the presence of both Soomar and Faqir Muhammad is established. As for Behram he had his hotel nearby and his presence cannot be denied, for he is a patural witness. His name transpires in the F. I. R. And we have no reason to disbelieve him. Additionally he was captured at the spot and taken alongwith his crime weapon to .The police station and which weapon was found to be blood-stained and so also his clothes. There is therefore, unequivocal evidence to sustain his conviction and we would accordingly maintain his conviction under section 302, P. P. C. Substantive. As for the sentence we have found that there is no element of premeditation and that he had killed the deceased on the spur of moment without there being anything to sustain the motive suggested by Soomar. What persuaded him to commit the murder is not clear. In the circumstances, we would alter his sentence to one of life imprisonment.
7. As for appellant Siddiq, we are of the view that there is no element of premeditation to establish the sharing of common intention, which is also otherwise not established from the circumstances of the case to have been shared at the time of the commission of the offence. Mere presence would not make him liable for the murder of the deceased. The trial Court without properly appraising the evidence, has held him guilty by reference to common intention, with which finding we do not agree. Giving to him the benefit of doubt, we would acquit him and accept his appeal.
He should be set at liberty forthwith unless required in some other case. Subject to the above modification, the appeal of Haji stands dismissed. The death sentence is not confirmed and the reference is rejected.