M. SIDDIQ J.----The brief facts of the case as narrated by Mst. Naziran complainant in the F. I. R. Are that on the night between the 18th and 19th of July 1972, she alongwith other members of the family including her brother Muhammad Yar deceased, her mother Mst. Aisha and her sister Mst. Bashiran was sleeping in the courtyard of their house. At about mid--night, Muhammad Shafi appellant armed with a sword and his son Muhammad appellant armed with a rifle alongwith four other acquitted co---accused persons entered the courtyard. On the barking of the dogs, the P. Ws.
Claim to have got up. Muhammad Yar (Yar Muhammad) deceased who was also sleeping in the same courtyard also got up and is alleged to be fired at by Muhammad appellant. The bullet hit him in the chest and he fell down and died on the spot. Ghulam Siddiq P. W. Whose house is adjacent to that of the complainant party and there is only a small wall intervening, also woke up and after scaling over the wall entered the court--yard of the complainant party. 6hulam Siddiq P.
W. Was also injured by Muhammad Shafi and other accused persons. Mst. Naziran, her mother Mst.
Aisha and sister Mst. Bashiran were also injured during the same incident. While running away Muhammad appellant and co-accused Ghaus Bakhsh are alleged to have fired one shot each but without hitting any one. The accused party also left behind a stick, a hatchet and a broken scabbard of the sword on the spot. According to the prosecution, the accused party wanted to forcibly carry away Mst. Naziran complainant who was the wife of Muhammad appellant. It may be mentioned here that Mst. Naziran was married to one Allu who used to visit the house of the present appellants. During their stay there, she developed intimacy with Muhammad appellant.
Subsequently, Allu died about 5/6 years before the present occurrence. After the death of her husband Mst. Naziran, according to one version was abducted by Muhammad appellant and according to the other suggestion she herself went to the house of this appellant and contracted a marriage through regular Nikah. In the beginning her mother and other members of the family including Muhammad Yar deceased, did not approve this marriage, but after about one year of the said marriage the members of both the families started visiting each other. Mst. Naziran also used to visit her parents' house alongwith her husband. She gave birth to two children-a boy and a girl. It is alleged that after sometime her husband Muhammad appellant stopped her from visiting her parents' house and this annoyed her. Due to this behaviour of Muhammad appellant; she secretly alongwith one child came to her parents' house and refused to go back to her husband's house. It is alleged that subsequently she filed a suit for dissolution of her marriage with the appellant at Muzaffargarh. This is alleged to be the motive by the prosecution why the accused party raided the house of the complainant party in order to forcibly take Mst. Naziran away. However, it is an admitted fact that the accused party did not succeed in their mission.
2. After the occurrence, Mst. Naziran went to Police Station Taunsa Sharif and lodged the F. I. R. Exh.
P. E. At 1-15 a.m. On 19-7-1972. S. I. Hidayat Ullah Khan after recording the report reached the place of occurrence, prepared the inquest report (Exh. P. F.) and injury statement (Exh. P. G.) of Muhammad Yar deceased and despatched the dead body to the mortuary for post-mortem examination.
Since Ghulam Siddiq, Mst. Bashiran P. Ws., Mst. Naziran complainant and their mother Mst. Aisha P.
W. Were also injured, the police officer prepared their injury statements Exh. P. J., P. K., P. L. And P. M.
And sent them for medical examination. The Investigating Officer took into possession blood- stained earth vide Memo. Exh. P. A. He also recovered three crime empties vide Memo. Exh. P. B., and stick (Exh. P. 1), hatchet (Exh. P. 2) and broken scabbard (Exh.P. 3/1-2) vide Memo. Exh. P. C. He got prepared site plan (Exh. P. U) from Imam Bakhsh Patwari. Since all the six accused persons involved in the case be--longed to De-excluded area of Dera Ghazi Khan District, they could not be arrested immediately after the occurrence. On the request of the Investigat--ing Officer the Border Military Police Incharge of the said De-excluded area arrested Muhammad Shafi, Muhammad appellants and two acquitted co-accused persons and then handed them over to the Investigating Officer who formally took them under arrest on 16-9-1972. Manzoor co-accused himself appeared before him on 25-9-1972, while Ghaus co-accused appeared on 12-10-1972. The eye-witnesses had stated that a lantern was burning in the courtyard at the relevant time, but the Investigating Officer did not take it into possession. After the usual investigation, the police challaned the present two appellants alongwith four other acquitted co-accused. They were tried by the Sessions Judge, Dera Ghazi Khan, who by his impugned judgment dated 20-11-1973 convicted the present appellants under section 302/34, P. P. C. For the murder of Muhammad Yar and sentenced each of them to death subject to confirmation by this Court. Each of the appellants was further sentenced to pay a fine of Rs. 100i~or in default thereof to undergo rigorous imprisonment for two years. These two appellants were fur--their convicted under section 326/34 P. P. C. And each sentenced to three years' rigorous imprisonment and a fine of Rs. 100 or in default thereof three months' rigorous imprisonment. The appellants were also convicted under section 323/34, P. P. C. On four counts for causing simple blunt weapon injuries to Ghulam Siddiq, Mst. Aisha, Mst. Bashiran and Mst. Naziran P. Ws. And each sentenced to three months' rigorous imprisonment on each count and a fine of Rs.
50 each or in default thereof one month's rigorous imprisonment each. The sentences of imprisonment and fine were to take effect only if the death sentences were not confirmed bar this Court. The fine under section 302/34 P. P. C. If realised was to be paid to the legal heirs of the deceased as compensation. The fine, if realised for offences under sections 326/34 and 323/34 P. P.
C. Was to be paid to Ghulam Siddiq, Mst. Aisha and Mst. Bashiran P. Ws. As compensation. The case against the remaining four co-accused persons, however, was found doubtful and, therefore, giving them benefit of doubt they were acquitted by the trial Court. The appellants have challenged their convictions and sen--tences through the present appeal. The case is also before us under section 374 Cr. P. C. For confirmation of the sentences of death. This judgment will dispose of both the Criminal Appeal as well as the Murder Reference.
3. Dr. Ghulam Rasul on 19-7-1972 at 5 p.m. Performed the post---mortem examination on the dead body of Muhammad Yar and found the following injuries on it :-
(1) Lacerated wound --" x --" circular in shape on the right Sterno-clavicular joint with inverted edges. This was wound of entry. No blackening of skin. Wound of exit. Lacerated wound 3--" x 2--" just to inner border of right scapula.
(2) Contusion 3--" x --" in front of left lower rib oblique in direction.
Death in the opinion of the doctor was occurred due to rupture of lungs and fracture of vertebrae and tortion of spinal cords due to injury No. r which was sufficient to cause death in the ordinary course of nature. Injury No. 1 was caused by a fire-arm. Probable time between Injuries and death was instantaneous and between death and post-mortem examination 20 to 24 hours.
4. On the same day the same doctor medically examined Ghulam Siddiq P. W_ and found the following injuries on his person :-
(1) Incised wound 4--" x --" x 1" on the top of right shoulder oblique in direction.
(2) Incised wound 1--" x --" x --" on back of right forearm 2--" above wrist in transverse direction.
There was fracture of bone.
(3) Incised wound 1--" x --" skin deep --" to the inner aide of injury No. 2.
(4) Incised wound --" x 1/8" skin deep just above injury No. 3.
(5) Contusion 6" x --" on lower part of left shoulder blade in transverse direction.
(6) Contusion 6" x 1/8" on back 3--" below injury No. 5.
Injury No. 2 was grievous while all others were simple. Injuries Nos. 1, 2, 3 and 4 were caused by a sharp-edged weapon while 5 and 6 with a blunt weapon. Duration of injuries was 6 to 8 hours.
5. The same doctor on the same day medically examined Mst. Aisha P. W. And found the following injury on her person .-
(1) Abrasion --" x 1/8" in front of neck just above the left Sterno-clavicular joint.
The injury was simple caused by a blunt weapon within the duration of 6 to 8 hours.
6. The same doctor on the same day examined Mst. Bashiran P. W. And found the following injury on her person :- (1)Lacerated wound --" x --" on back of upper part of right little finger.
The Injury was simple in nature caused ay a blunt weapon within the dura--petition of 6 to 8 hours.
7. On the same day the sama doctor medically examined Mst. Naziran and found the following injury on her person :-
(1) Swelling 1" x --"on forehead just above right eye-brew.
The injury was simple in nature caused by a blunt weapon within the dura--petition of 6 to 8 hours.
8. The present appellants when examined under section 342 Cr. P. C. Denied the prosecution allegations. Muhammad Shafi appellant admitted that Muhammad appellant was his son. He further admitted that Mst. Naziran complainant was married to one Allu and that they used to come to live with them at Bharti when his son Muhammad appellant developed intimacy with her.
When asked whether Mst. Naziran, on the death of her husband said Allu, was abducted by his son Muhammad appellant or eloped with him and then married her, he stated as under :- ---Yes. She was married with my son without the consent of her parents but neither she was abducted nor eloped.--- When asked whether about three months before the occurrence Mst. Naziran complainant had left his son Muhammad appellant and came to her parent's house at Taunsa Sharif, he stated as under--- ---No, my son bad himself left her at her parent's house.--- When asked why this case was made against him, he stated as under :- ---As my son bad married Mst. Naziran without the consent of her relatives, so I have been falsely involved due to enmity.--- Muhammad appellant also made a similar statement under section 342 Cr. P. C. The appellants, however, produced no evidence in their defence.
9. In support of its case, the prosecution has relied upon the ocular evidence of three eye- witnesses, namely, Ghulam Siddiq (P.W.8), Mst. Aisha (P. W. 9) and Mst. Bashiran (P, W. 10). The trial Court further relied upon the F. I. R. And the motive as pieces of corroborative evidence. The trial Court relying upon the statements of the eye-witnesses and the corroborative pieces of evidence convicted and sentenced the appellants as mentioned above.
10. It is an admitted fact that all the three eye-witnesses produced by the prosecution namely, Ghulam Siddiq, Mst. Aisha and Mst. Bashiran are injured ones. It is not denied that these P. Ws.
Received injuries in the, same incident in which Muhammad Yar deceased lost his life. No doubt all the eye-witnesses are closely related inter se as well as to the deceased, yet since the occurrence took place in the courtyard of the house of the complainant party at night, their presence on the spot cannot be denied and in that back--ground they will be the most natural witnesses. Even the learned defence counsel has not doubted the presence of these aye-witnesses can the spot. We have ourselves gone through their statements and that of the Medical officer and are convinced that they were present on the spot at the relevant time and, therefore, they have been rightly believed by the trial Court. These eye-witnesses have unanimously deposed that Muhammad Yar deceased was fired at by Muhammad appellant. On the receipt of this fire shot he fell down and died on the spot. According to the doctor the cause of death of the deceased was this firearm injury. Although the doctor found another contusion 3*' x *' in front of the left lower rib, yet this injury has neither made any contribution towards the death of the deceased, nor is attributed to Muhammad Shafi appellant. The learned counsel for the State has admitted before us that this contusion could not be caused by the sword of Muhammad Shafi appellant. Thus, we find that according to the eye--witnesses and the medical evidence Muhammad Shafi appellant is not attri--buted any injury to the deceased. Confronted with this situation, the learned State counsel has conceded that the conviction of this appellant (Muhammad Shafi) under section 302/34 P. P.
C. For the murder of Muhammad Yar can--not be maintained. We have ourselves also considered this aspect of the case and are inclined to agree with him. The conviction and sentences awarded to Muhammad Shafi appellant under section 3132/34 P. F. C. Are, therefore, not maintainable and the same are set aside. However, as regards his convictions under sections 326/34 and 323/34 P. P.
C. They stand established beyond any doubt. Ghulam Siddiq P. W. Who is an injured eye--witness has stated both in his examination-in-chief and cross-examination that when he tried to intervene, he was given a sword blow by Muhammad Shafi appellant. Subsequently, this appellant gave two more blows with the 6 same sword to this witness. In fact, all the injuries of Ghulam Siddiq P. W. Are attributed to Muhammad Shafi appellant. According to the medical evidence four of his injuries are incised wounds while two are contusion. Mst. Aisha P. W. Has also stated that Ghulam Siddiq P. W.
Was given sword blows by Muhammad Shafi appellant. She has further stated that this appellant injured her as well as her daughters Mst. Bashiran P. W. And Mst. Naziran complainant. Similar is the statement of Mst. Bashiran P. W. Thus, after going through the statements of these eye-witnesses coupled with the medical evidence we are convinced that Muhammad Shafi has been rightly convicted and sentenced under sections 326 and 323 P. P. C. Accord--ingly, we maintain his convictions and sentences for the said offences.
11. As regards Muhammad appellant, all the eye-witnesses have stated that he fired a shot with his rifle which hit Muhammad Yar deceased at his chest. Ors the receipt of this shot he fell down and died instantaneously on the spot. Although Ghaus (acquitted co-accused) was also said to be armed with a rifle and he also subsequently fired, but it did not hit anyone. Thus, according to the eye-witness account, it was Muhammad appellant alone who fired at and hit the deceased at his chest as a result of which he expired on the spot. The eye-witnesses are corroborated by the medical evidence on this point, because the doctor who performed the post-mortem examination found the nature and location of the injury as given by the eyewitnesses. C Another corroborative piece of evidence used against this appellant is the motive. It is alleged by the prosecution that Mst. Naziran during the life time of her previous husband Allu used to visit the house of this appellant and developed intimacy with him. After the death of said Allu she married Muhammad appellant against the wishes of her parents including her deceased brother. After her marriage with Muhammad appellant she did not visit her parents' house for some time but later on both the families were on visiting terms. According to the prosecution, Mst. Naziran was sub--sequently stopped from visiting her parents' house which annoyed her. It was for this reason that she secretly ran away from the house of her husband and came to her parents' house with one child. Later on, she refused to go with her husband Muhammad appellant. It was after her refusal that the accused party decided to carry her forcibly and raided the house on the night of the occurrence. It is in prosecution evidence that the accused party searched for Mst. Naziran not she could not be found out there and, there--fore, the accused party could not succeed in lifting her away. It was during this raid by the accused party that Muhammad Yar deceased lost his life and the eye- witnesses received the injuries. This motive has been amply proved against Muhammad appellant.
After going through the relevant material available on the record and hearing the arguments of the counsel for the parties, we have no doubt in our mind that all the three eye-witnesses, namely, Ghulam Siddiq, Mst. Aisha and Mst. Bashiran P. Ws. Who also received injuries in the same incident had witnessed the occurrence and have named Muhammad appellant as the assailant who caused the death of Muhammad Yar deceased by firing a shot with his rifle at the chest of the deceased. Since the occurrence took place in their own courtyard at midnight in the month of July when all of them were sleeping in their open courtyard, they will be the most natural witnesses of the occurrence. Their mere relation--ship inter se and with the deceased will not be sufficient to discard their testimony and the conviction of this appellant can be maintained on their testi-- mony alone. However, as an abundant caution the ocular testimony stands corroborated in this case by the motive and the medical evidence. Since Muhammad Yar deceased had only one fire- arm injury and that is attributed only to Muhammad appellant, he alone is responsible for his death. Accord--ingly, we maintain the conviction and sentence of Muhammad appellant under section 302, P. P. C. For the murder of Muhammad Yar deceased. We find no mitigating circumstances to justify lesser penalty. We, therefore, p confirm the sentence of death awarded to him by the trial Court Since the common intention of the alleged unlawful assembly formed by the accused partly was to forcibly lift Mst. Naziran, the wife of Muhammad appellant, and they could not achieve that object as she was not found by them on the spot, each accused will be responsible for his own act, especially when four co-accused have already been acquitted by the trial Court. None of the injuries found on the person of the eye-witnesses is attributed to Muhammad appellant. Moreover, we find that he is alleged to be armed with a rifle and he fired one effective shot at Muhammad Yar deceased killing him on the spot and the other without hitting anyone at the time of leaving the place of occurrence. Thus, except the firearm injury to the deceased, Muhammad appellant is not attributed any other injury of the eye-witnesses. We have examined the medical evidence and find that none of the injuries of the eye-witnesses is caused by a fire-arm. In this situation, Muhammad appellant cannot be held responsible for causing those injuries to the eye-witnesses, especially when the common intention of the accused party was to forcibly take away Mst. Naziran, the wife of Muhammad appellant. In this view of the matter, his conviction under sections 326/34 and 323/34, P. P. C. Cannot be maintained. Accordingly, we set aside his convictions and sentences for these offences.
12. The upshot of the above discussion is that the conviction and sentences of Muhammad Shall appellant under section 302/ 34, P. P. C. For the murder of Muhammad Yar are set aside. However, his convictions and sentences under sections 326/34 and 323/34, P. P. C. Are altered to under section 326 and 323, P. P. C. And the same are maintained. The conviction of Muhammad appellant from section 302/34, P. P. C. Is altered to one under section 302, P. P. C. And his convictions and sentences are maintained. His sentence of death is confirmed. However, his convictions and sentences under sections 326/34 and 323/34, P. P. C. Are set aside.
13. The present appeal stands disposed of in the above terms.