1. MUHAMMAD SIDDIQ, J.----According to the prosecution version the brief facts of this case are that a day prior to the occurrence at about peshiwela a herd of sheep of Muzaffar Khan (P. W. 8)
2. (brother of Jehan Khan deceased) went astray into the field of Allah Dad (acquitted co-accused) and damaged his barseem fodder. Allah Dad abused him and Muzaffar Khan in retaliation gave him shoe beating. They were separated by Amir (P. W. 9). Allah Dad is said to have thrown a challenge to Muzaffar Khan by saying that he would avenge the shoe beating given to him. On the day of occurrence namely, 30-12-1968, Jehan Khan deceased went to the house of Muhammad Ramzan P. W. And sat with him for some time. Both of them then left for the dera of Muhammad Ramzan. Sultan P. W. Also accompanied them. When they reached near the dera of Allah Dad (acquitted co-accused) all the six accused persons, including the present appellants emerged from the dera and challenged them from behind. Muhammad Amir appellant was carrying a gun, while the remaining accused persons were armed with lathis. Jehan Khan deceased and others tried to run towards the West where they were encircled by the accused party. All the accused persons asked Muhammad Amir appellant to fire at them on which Muhammad Amir fired at Jehan Khan deceased hitting him on his chest. He fell down and died on the spot. The remaining accused persons attacked Ramzan and Sultan P. Ws. With their sticks and injured them. They raised alarm which attracted Muhammad Khan and Sultan son of Muhammad Khan P. Ws. Who rescued Ramzan and Sultan P. Ws. Muhammad Ramzan claims to have snatched a stick from Mir Baz appellant and in self-defence caused injuries to Mir Baz and Nazra appellants. The accused party then went away towards their dera. Leaving Mehar A.I and Sultan P. Ws. Near the dead body Ramzan P. W. Left for the police station and lodged the F. I. R. Exh. P. A. At 6-30 P.m. On the same day.
3. It was recorded by Muhammad Hussain Shah, Sub Inspector who prepared the injury statement (Exh. P. Q.) of Muhammad Ramzan as he was bearing injuries on his person. The Investigating Officer then reached the spot, prepared the injury statement (Exh. P. R.) of the deceased and the inquest report (Exh. P. S.) and despatched the dead body to the mortuary for post-mortem examination. Sultan P. W. Appeared before him and since he was bearing injuries on his person, the Investigating Officer prepared his injury statement (Exh. P. I.) also and sent him for medical examination. On the following day, he took into possession blood-stained earth from the spot and sealed it into a parcel vide Memo. Exh. P. B. After the post-mortem examination of the deceased, Ata Muhammad F. C. Brought his clothes (Exhs. P. 1 to P. 5) and a sealed parcel containing pellets which he seized vide memo. Exh. P. C. On 2-1-1969, he handed over the sealed parcels to Wazir Muhammad, Moharrir Head Constable for onward transmission to the Chemical Examiner. On that day he arrested all the accused persons except Muhammad Amir accused. As Nazra and Mir Baz accused were bearing injuries on their persons, the Investigating Officer prepared their injury statements (Exhs. P. G./I and P. H./1) and got them medically examined. On 6-1-1969, Nazra accused led to the recovery of stick (Exh. P. 7) from a heap of manure. It was taken into possession vide memo. Exh. P. D. Mir Baz accused also got recovered lathi (Exh. P. 8) from the roof of his house which was taken into possession vide memo. Exh. P. E. Muhammad Amir accused was arrested from Lahore Cantonment on 13-1-1969. On 16-1-1969, be got recovered gun (Exh. P. 9) from a heap of manure in front of his house. The gun was made into a sealed parcel vide memo. Exh. P. F. And the said parcel was banded over to Wazir Muhammad, A. S. I. For onward transmission to the Forensic Science Laboratory. The Investigating Officer also got prepared the site plans (Exhs. P. J. And P. J./1) from Bashir Ahmad Patwari and the entries and notes in red ink are in his hand. After the usual investigation, all the six accused persons, including the present appellants, were challaned under sections 302/148/149 and 307/149, P. P. C. The trial Court acquitted Muhammad Nawaz and Allah Dad co-accused but convicted the present appellants under section 302/34, P. P. C. For the murder of Jahan Khan and sentenced Muhammad Amir appellant to death and a fine of Rs. 2,OOG.00 and the remaining appellants to transportation for life and a fine of Rs. 2000.00 each. In default of payment of fine each one of them was further sentenced to one year's rigorous imprisonment. All the four appel--lants were further convicted under section 323/34, P. P. C. And each one of them was sentenced to undergo rigorous imprisonment for one year. In the case of Muhammad Amir appellant this sentence of imprisonment was to take effect if the sentence of death was not confirmed by this Court. The sentences of imprisonment against the remaining appellants were ordered to run concurrently. Feeling aggrieved with their convictions and sentences the appellants have challenged the same through the present appeal. The case of Muhammad Amir appellant is also before us under section 374, Cr. P. C. For the confirmation of the sentence of death. This judgment will dispose of both the Criminal Appeal and the Murder Reference.
2. Dr. Muhammad Ismail performed the post-mortem examination on the dead body of Jehan Khan deceased and found the following injuries:---
(1) A lacerated wound with inverted edges, 1' x --' at the medial end of the right clavial. It was communicating with the chest cavity.
4. (2.) Abrasion, --' x --' on the dorsum of the right hand.
(3) A nodule, 1' x 1" on the lower back of the right chest. On dissec--petition a big pellet was taken out.
5. 7th and 8th thorax vertebrae were fractured. Spinal cord contused at the site of injury to the vertebrae. Right inner end of the clavial membrane sterin Ist and 2nd ribs near injury No. 1 fractured.
6. 7th and 8th ribs were broken at the back. Pellet was found in injury No. 3 at the level of 10th and 11th right ribs. Pleura injured at the site of injuries described above. Blood was found in the trachea.
7. Right lung lacerated and contused on the medial side. Homo thorax on the right side. Left lung contused near the root. Paricardium contused on the right side. Heart was healthy, con--tracted and empty. Blood vessels at the right route of the back and of the right haulm of the lung injured.
8. Stomach was healthy and about 1 oz. Of mucoid acration was found. Small and large intestines and their contents healthy and good. Rest of the organs were healthy. Kidneys healthy except a slight bruise on the right upper pole. Bladder was healthy containing about three ozs. Of urine.
9. Death in the opinion of the doctor occurred due to shock and revere haemorrhage from the big blood vessel on the right route of the neck and right lung which was due to injury No. 1 which was sufficient to cause death in the ordinary course of nature. Injury No. 1 was due to firearm. Injury No. 2 was by a blunt weapon. Injury No. 3 was due to the pellet which entered from injury No. 1. Probable time between the injuries and death was within 5 to 10 minutes, while between death and post- mortem was within 24 hours.
10. On the same day the same doctor examined Muhammad Sultan, son of Haji Ahmad (P. W. 12) and found the following injuries on his person:--
(1) An incised wound, 2 --' x --' scalp deep on middle of the head, 3' above the root of the nose.
(2) An abrasion, --' x --', on the back of little finger of the right hand at the level of matacorpo- fiingial joint of the right of the little finger.
(3) An abrasion, --' x 1/6' with swelling of the area on the back of left hand in between the Ist and 2nd matacarpo-flingial joints:
(4) A contusion, 3'x --' on the back of the left shoulder.
(5) A contusion, 4' x 2' on the left buttock with swelling of the area.
11. Injury No. 1 was kept under observation and was advised X-ray, 2 to 5 were simple. Duration was within 24 hours. Sharp-edged weapon for injury No. 1 and the remaining injuries were caused by blunt weapon.
12. This doctor on the same day also examined Muhammad Ramzan (P. W. 11) and found the following injuries on his person :-
(1) An incised wound 2-- ' x --' scalp deep on the middle of head 3--' above the route of the nose, longitudinal in direction.
(2) An abrasion, 1--x --' on the middle of the back, 3-- " below the first thoracic vertebra.
(3) An abrasion, -- ' x -- ' on the middle of back close to first thoracic vertebra.
(4) Linear lacerated wound on the left little finger -- 'x 1/6' on the route of little finger nail.
(5) An abrasion, 1/6' x 1/6' on the middle of the little finger of left hand on the dornal surface.
(6) Transverse abrasion, 1' x 1/10'on the outer surface of the right forearm 1' below the elbow-joint.
13. Injury No. 1 was caused by a sharp-edged weapon and was kept under observation. X-ray was advised for injury No. 1. Rest of the injuries were -simple. The duration was within 24 hours.
14. "If Ramzan P.W. Had fallen in different positions then his injuries Nos. 2 to 6 could be caused by fall or friction against some hard surface. These injuries could also be self-suffered. The possibility of injuries Nos. 2 and 3 on Sultan P. W. Is being caused by a fall but it is more likely that they are caused by direct blow. Injury No. 2 on the deceased could be result of fall."
15. On 2-1-1969 Dr. Abdul Shakoor examined Mir Baz appellant and found an abrasion 3-- x --' covered with scab on back of left forearm at middle. The injury was simple caused by a blunt weapon within -- days.
16. This doctor also examined Nazar Muhammad appellant but found no sign of any injury or swelling on any part of his body.
17. Sultan son of Haji Ahmad and brother Ramzan P. Ws. Were re-examin--ed by Dr. Abdul Rashid on 1- 1-1969 and he found the following injuries on, their persons:--- Sultan : (1) A stitched slightly curved wound, 2--- long in healing stage --depth and breadth could not be ascertained due to stitching. Wound margins were irregular. It was situated over the mid- frontal region of scalp 3' above root of nose.
(2) A healing abrasion -- ' x --' on the back of right little finger.
(3) A healing abrasion, --' x 1/6' on the back of left hand opposite the cleft between little and ring finger.
(4) A contusion, 3' x 3/4' on the back of left shoulder.
(5) A contusion, 4' x 2' on the left buttock with bluish area over it.
18. Ramzan: (1) A slightly curved stitched wound, 2--' long (depth and breadth could not be ascertained due to healing crosses and stitching situated over the mid-frontal region of scalp 31' above the root of nose. The margin of the wound showed irregularity and swelling.
(2) A healing abrasion, 1 3/8 ' x --" in the middle of back chest in the --upper dorsal region.
(3) A healing abrasion, --' x --' about 3' above injury No. 2.
(4) A healing lacerated wound --' and skin deep at the margin of the --nail of left little finger.
(5) A healing abrasion 1/6' x 1/6' over the middle of back of left littler finger.
(6) A healing abrasion, 1' x 1/8' over the back of right arm, 1" below right elbow joint. All the injuries were simple and caused by blunt object and probable duration was 24 to 40 hours.
3. The accused persons when examined under section 342, Cr. P. C. Denied the prosecution allegations, and stated that they were involved falsely, due to enmity and party faction. It may, however, be observed that in cross-examination it was suggested to Muzaffar Khan (P. W. 8) that Mir Bar: accused had rounded up his sheep and was taking them to the cattle-pound. When the deceased along with Sultan and Ramzan P. Ws. Intervened and tried to forcibly snatch the sheep from him which resulted in a fight. Jalah Din, F. C. Naib Moharrir of Police Station, Saddar Sargodba, was produced as a defence witness. He produced the register of F. I. R. Pertaining to the year 195.1.
19. According to the defence witness on 30-10-54 a case under sections 307/149, 148, P. P. C. Was registered at the instance of one Khan. Muhammad son of Shah Alam Tiwana of Chak No. 54/NB.
20. The accused in this case were Sheikh Ahmad son of Sher Ahmad, Ahmad son of Dost Muhammad and others. Naza son of Allah Din was also one of the accused persons. Muhammad Nawaz son of Muhammad Khan accused, case Mahl and Muhammad Khan son of Ghulam Muhammad Awan, resident of Chak No. 54/NB were the prosecution witnesses. In cross-examination he admitted that the case ended in the conviction of the accused under section 323, P. P. C. They were sentenced to fine of Rs. 30 each.
4. In support of its case the prosecution produced three eye-witnesses namely, Muhammad Ramzan (P. W. 11), Muhammad Sultan son of Haji Ahmad (P. W. 12) and Sultan son of Muhammad Khan (P. W. 13). In support of the incident which took place one day prior to the occurrence, the prosecution has relied upon the testimony of Muzaffar Khan (P. W. 8) and Amir (P. W. 9). The recoveries of various articles have been supported by Mehr A.I (P. W. 10) and the Investigating Officer (P. W. 15). Muhammad Khan (P. W. 14) was also produced in support of the actual occurrence. The learned Sessions Judge accepted the testimony of Ramzan (P. W. 11) and Sultan (P.
21. W. 12) supported by Sultan (P. W. 13) and Muhammad Khan (P. W. 14). The learned Sessions Judge while giving benefit of doubt to Muhammad Nawaz and Allah Dad (co-accused) and acquitting them observed as under :- "Muhammad Nawaz and Allah Dad accused are above 70 years of age and seemingly elderly persons and I seriously doubt if they could, be active participants in the execution of the crime which seems to have been perpetrated with youthful bravado and impetuosity. No doubt the occurrence was sequal to a shoe beating given by Muzaffar Khan P. W., brother of the deceased to Allah Dad accused a day prior to the occurrence, but that does not necessarily imply that he must himself participate in the occurrence, when it could be accom--plished by Amir accused, his son and other relations."
22. However, the trial Court convicted and sentenced the present appellants as mentioned above.
5. The main contention advanced on behalf of the appellants by Mr. Ijaz Batalvi is that all the eye- witnesses being related inter se and inimical towards the appellant they deserve acquittal as their convictions cannot be maintained on the basis of such interested and inimical evidence without independent corroboration which is missing in this case. Since some of the witnesses and the accused persons are injured, the occurrence is not being denied. There is no suggestion that some other persons may have caused the injuries to the complainant party. After going through the evidence we are convinced that the injuries to the complainant party were caused by the accused party. In these circumstances, the main question which requires consideration is as to how the occurrence took place. As suggested by the prosecution, were there two incidents-one a day earlier, and the other on the day of occurrence or both the damaging of the fodder crop and the murder took place at the same place, on the same day and at the same time as suggested by the defence? We are inclined to agree with.: the defence suggestion. We get support to this conclusion from various circumstances. Muzaffar Khan (P. W. 3) who is the real brother of Jehan Khan deceased, has admitted in cross-examination that the deceased was, murdered in the field in which his sheep had entered. In other words,. According to this witness the deceased was murdered in the same field in which the barseem fodder of Allah Dad was damaged by the sheep of Muzaffar Khan a day earlier. A perusal of the plan (Exh. P. J.) and the statements of the witnesses show that the murder took place in Killa No. 23, while the barseem fodder of Allah Dad accused was damaged in Killa No. 2. Thus, these two Killas numbers or the places are separate from each other.
23. The admission by Muzaffar Khan that Jehan Khan deceased was murdered in the same field where barseem was damaged by his sheep is, therefore, a clear indication that both the incidents took place at the same place and on the same day and this directly supports the defence suggestion.
24. There is another circumstance which goes against the prosecution on this point. According to the testimony of Muhammad Ramzan (eye-witness) he was carrying a pot of silver (aluminium) with him for bringing the milk when the party was attacked. When he ran away, he claims to have thrown the pot there. He - does not know what happened to this pot, nor he tried to find it out.
25. Similar is the statement of Sultan (P. W. 12) that he was carrying a pot at that time. It is an admitted fact that no such pot has been recovered by the Investigating Officer from near the place of occurrence, nor is there any explanation by the prosecution as to what happened to it. Absence of the recovery or explanation for the absence of the pot goes a long way in support of the defence suggestion. It may also be observed that according to Muhammad Sultan P. W. His other two companions, namely, Muhammad Ramzan and Jahan Khan were empty-handed. It means that Ramzan P. W. Was not carrying any pot with him. It also does not appeal to common sense why Jehan Khan deceased should accompany Muhammad Ramzan and others to their dera at the relevant time. The prosecution has offered no explanation why should the deceased accompany the prosecution - witnesses who allege that they were going to their dera. It appears to us that the probability that there was only one incident at one and the same time and place cannot be ruled out. In any case, the prosecution story that there were two independent incidents on two different dates and at two different places has not been established beyond any reasonable doubt. It seems that when the sheep of Muzaffar Khan P. W. Damaged the barseem fodder of Allah Dad accused and admittedly there was exchange of abuses between them and shoe beating to Allah Dad, this might have attracted the other P. Ws. And the accused persons to the spot. It appeals to common sense that trespassing of the fodder crop and the actual occurrence took place on the same day, at the same time and same place resulting in the death of one person and injuries to the others. In such a situation we have to determine the liability of each accused person.
26. Muhammad Amir appellant is alleged to have fired one shot hitting the deceased on his chest. The remaining accused persons did not cause any injury to the deceased and he died of that gunshot injury on the chest. Muhammad Ramzan P. W. Tried to say that all the other accused persons asked Muhammad Amir appellant to fire at them and it was after this that Muhammad Amir appellant fired at Jehan Khan. When confronted with his statement under section 161, Cr. P. C., be stated that he did not recollect if he had stated so before the police, but when confronted with that statement it was found that it was not so recorded in Exh. P. A. Thus, even this liability of the other accused persons has not been proved by the prosecution. Muhammad Ramzan in cross-examina--petition has admitted that Jehan Khan deceased was not given any soti blow by any of the accused persons. After carefully going through the statements .Of the eye-witnesses and the medical evidence we are clearly of the view that Muhammad Amir appellant alone is responsible for causing the death of Jehan Khan deceased. The prosecution has failed to connect the remaining accused persons with the murder of Jehan Khan. They have not contributed anything directly or indirectly towards the death of Jehan Khan deceased. The prosecution has failed to establish any common intention against the other accused persons. We have come to the conclusion that except Muhammad Amir appellant no other accused person is responsible for the murder of Jehan Khan deceased. In this respect we are supported by another circumstance. Since the fight between the parties started because the sheep :of Muzaffar Khan P. W. Trespassed into the barseem crop of Allah Dad ,accused, resulting in exchange of abuses and shoe beating to Allah Dad accused, Muhammad Amir being the real son of Allah Dad must have felt offended and, therefore, fired one shot which hit the deceased. Because of the close relationship between Muhammad Amir and Allah Dad who alone was given shoe beating he alone used dangerous weapon in this fight. If all of them had the same common intention of murdering Jehan Khan deceased, then their role in this fight should have been different and they should have also attacked him with their respective weapons for which they had ample opportunity to do so. Absence of any other injury on the person of the deceased clearly demonstrates that they did not share the same intention with Muhammad Amir appellant. The learned counsel appearing for the State could not successfully convince us as to how the conviction of these appellants, namely, Muhammad Ishaque, Mirbaz and Nazra can be maintained under section 302, P. P. C. For the murder of Jehan Khan deceased. After careful scrutiny of the material available on the cord, it can safely be inferred that Muhammad Amir alone is responsible for the murder of Jehan Khan deceased and that the remaining appellants, namely, Muhammad Ishaque, Mirbaz and Nazra, cannot in any way be held guilty under section 302/34, P. P.
27. C. Accordingly, we acquit Muhammad Ishaque, Mirbaz and Nazra appellants under section 302, P.
28. P. C. For the murder of Jehan Khan deceased. The conviction of Muhammad Amir appellant under section 302, P. P. C. Is, however, maintained. As regards the question of sentence, we are not inclined to impose the normal penalty of death upon Muhammad Amir appellant. It is admitted by the prosecu--petition that his father Allah Dad was given shoe beating by Muzaffar Khan P. W. In our society shoe beating to the father of a person is considered to be most humiliating and disgraceful. The appellant also must have fired under that impulse. He fired only one shot, although there was nothing to prevent him from firing more shots. It is also an admitted fact that it was the crop of his father Allah Dad which was damaged by the sheep of Muzaffar Khan P. W. After taking into consideration all these circum stances we feel that the ends of justice would be met if he is given lesser penalty for the offence committed under section 302, P. P. C. Accordingly, while maintaining the conviction of Muhammad Amir appellant under section 302, P. P. C., for the murder of Jehan Khan deceased, we substitute his sentence of death with that of life imprisonment. The sentence of fine of Rs. 2,000.00 awarded by the learned Sessions Judge is not called for and the same is hereby set aside. However, his conviction and sentence under section 323/34, P. P. C. Are also set aside.
6. As regards the conviction of appellants Muhammad Ishaque, Mirbaz and Nazra under section 323/34, P. P. C. It calls for no interference by this Court for the simple reason that the incident is more or less admitted in which both the parties received injuries. In such a situation, the participa- -petition of these appellants and infliction of injuries to the prosecution witnesses stand proved beyond any reasonable doubt. We, therefore, hold that they shave been rightly convicted under section 323/34, P. P. C. And sentenced to one year's rigorous imprisonment each. Since these appellants, namely, Muhammad Ishaque, Mirbaz and Nazra were convicted and sentenced by the learned Sessions Judge by his judgment dated 29-11-1971, they have already undergone this period.
29. They shall be released forthwith if not -required in any other case.