' JUSTICE ABDUL MAJID TIWANA (MEMBER-II).--- This judgment shall also deal with Criminal Appeal No,66/SAC/L of 1992 filed by the State against Muhammad Aslam respondent, challenging his acquittal, both arising out of the judgment, dated 5-10-1992, delivered by the learned Judge, Special Court for Speedy Trial, Multan. By this judgment he, after acquitting Muhammad Aslam co- accused on benefit of doubt, convicted Taj Muhammad appellant, his son Muhammad Mansha appellant and their relation Muhammad Rafiq appellant---
(a) under section 302, P.P.C. For the murder of Muhammad Yaqub, Noor Ahmad and Muhammad Nawaz and awarded them sentence of death as Qisas on three counts and also sentenced them to a fine of Rs,1,00,000 (one lac) or to suffer two years' R.I. Each on each count;
(b) under section 324, P.P.C. For the attempted murder of Muhammad Iqbal and Riaz Hussain P.Ws.
And sentenced each of them to 10 years' R.I. And a fine of Rs,20,000 or in default to further undergo 6 months' R.I. Each on each count;
(c) under section 337-A, P.P.C. For causing injuries with blunt weapon to Muhammad Yousaf P.W.
On his head and face and sentenced each of them to one year's R.I. And a fine of Rs,200 or in default to further undergo two months' S.I.; and
(d) under section 337-F, P.P.C. For causing injury with blunt weapon on the thigh of Muhammad Yousuf P.W. And sentenced each of them to six months' R.I. And a fine of Rs,200 or in default to further suffer two months' S.I.
2. The fine imposed for the murders, if realised, was directed to be paid as compensation to the heirs of the three deceased under section 544-A, Cr.P.C. And the sentence of imprisonment awarded to the convicts was directed to run concur tently in case their death sentence was commuted. In that event they were given the benefits of section 382-B, Cr.P.C.
3. The prosecution case was that Taj Muhammad appellant alongwith his two sons, Muhammad Mansha appellant and Muhammad Aslam acquitted co-accused, besides other members of his family, resided at his Bhaini situated in his land in the area of Chak No,129/W.B., Tehsil Mailsi, District Vehari. Complainant party also had some land in the vicinity of his land. Both the parties irrigated their respective fields from the same watercourse. There used to be a controversy between them over the use of canal water and they often fell out with each other. In this background of strained relations, on 3-8-1991 at about mid-day, when the land of Allah Yar complainant and others was being irrigated, he accompanied by Noor Ahmad and Muhammad Yaqub (deceased) went to have a round of the watercourse. During the round, they observed a cut in the watercourse, as a result of which the water of their turn stood diverted towards the paddy field of Taj Muhammad appellant. After closing the cut when they were returning to their field, which was being irrigated, and reached near the Bhaini of Taj Muhammad by the side of watercourse, they were confronted by the three appellants and their acquitted co-accused, all armed with .12 bore guns. Taj Muhammad appellant raised a Lalkara', exhorting his co-accused to teach a lesson to their opponents for frequently raising dispute over the irrigational water and simultaneously fired at Muhammad Yaqub (deceased). Hearing his `Lalkara', Muhammad Nawaz (deceased), Allah Ditta, Riaz Hussain, Muhammad Hussain, Muhammad Yousuf and Muhammad Iqbal P.Ws., who were hoeing the cotton crop at a distance of about one acre away from the Bhaini of Taj Muhammad appellant, rushed to the spot. Muhammad Nawaz (deceased), who was brother of Muhammad Yaqub (deceased) and Noor Ahmad (deceased), was ahead of the group of rescuers. The shot fired by Taj Muhammad appellant had hit Muhammad Yaqub (deceased) on the right thigh, as a result of which he fell down. Then Muhammad Mansha appellant fired at Noor Ahmad (deceased), hitting his right shoulder, followed by Muhammad Aslam acquitted co-accused, who fired a shot on the left side of the face of Noor Ahmad as a result of which he also fell down. Muhammad Rafique appellant fired a shot at Muhammad Nawaz (deceased), injuring his right thigh. Taj Muhammad appellant fired the second shot, hitting the legs of Muhammad Iqbal P.W., while the second shot fired by Muhammad Mansha appellant caused injuries on the left leg of Muhammad Riaz P.W. Muhammad Yousuf P.W. Stepped forward but he was attacked by all the assailants with the butts of their guns, as a result of which he sustained injuries. As a consequence of the fire-arm injuries Muhammad Yaqub, Noor Ahmad and Muhammad Nawaz expired on the spot, while Muhammad Iqbal, Muhammad Riaz and Muhammad Yousuf were injured. Leaving his companions to watch over the dead bodies and to look after the injured, Allah Yar complainant went to Police Station Mitru and lodged the report (Exh.P.Q.), narrating the above mentioned facts therein. He also recorded the supplementary statement (Exh.P.Q./1) to the effect that Muhammad Aslam acquitted accused was in fact armed with a .12 bore gun and he happened to inadvertently state that he was carrying a rifle.
4. After the registration of the case, Inspector Muhammad Ilyas (P.W.12) took up its investigation and accompanied by the complainant and a group of police officials went to the spot. Reaching there, he prepared the injury statements and inquest reports of the three deceased and despatched their dead bodies to the mortuary for post-mortem examination. He also prepared the injury statements of the three injured persons lying on the spot and removed them to Civil Hospital, Mailsi, for medical examination and treatment. He picked up two empties of .12 bore guns from the spot besides collecting blood-stained earth from under the dead bodies. He recorded the statements of prosecution witnesses. He arrested the accused on 17-8-1991. Meanwhile he got prepared the site plan from the revenue Patwari. On 21-8-1991 Taj Muhammad appellant, while in police custody, got recovered gun P.15 from his residential Bhaini. It was seized by the Investigating Officer vide recovery memo. (Exh.P.V.). On the same day Muhammad Mansha appellant got recovered gun P.16 from the bedding lying on the cot in his house which was seized and sealed by the police vide memo. (Exh.P.W.). On the same day Muhammad Aslam acquitted accused got recovered his gun P.17 which was taken into possession vide memo. (Exh.P.B.). On the same day Muhammad Rafique appellant got recovered gun P.18 from his residential house. The Investigating Officer handing over the parcels to A.S.I. Allah Ditta who in turn delivered them to F.C. Abdul Rashid for onward transmission to the relevant offices at Lahore in due course. On the completion of investigation he submitted the challan to the Court concerned against the appellants and their acquitted co-accused.
5. On the commencement of trial, the accused were charged for the murder of Muhammad Yaqub, Noor Ahmad and Muhammad Nawaz, attempted murder of Muhammad Iqbal, Riaz Hussain and Muhammad Yousuf P.Ws. And for causing injuries with blunt weapon to Muhammad Yousuf P.W. On the repudiation of the charge, the prosecution led evidence against them by producing as many as 12 witnesses. To be a little more precise, Abdul Shakoor Revenue Patwari (P.W.1) who proved the site plans (Exh.PA.), (Exh.PA./1) and (Exh.PA./2); Constable Taj Muhammad (P.W.3), Constable All Muhammad (P.W.4), Constable Abdul Rashid (P.W.5), Abdul Razzak (P.W.6), the identifier of the dead bodies; and F.C. Muhammad Jamil (P.W.11), were formal witnesses and their testimony needs no detailed discussion.
6. Dr. Muhammad Razzak Medical Officer, T.H.Q. Hospital, Mailsi (P.W.3) had in the morning of 4-8- 1991 conducted post-mortem examination on the dead bodies of Noor Ahmad, Muhammad Yaqub and Muhammad Nawaz and had medically examined Muhammad Iqbal, Riaz Hussain and Muhammad Yousuf P.Ws. a day earlier.
7. He deposed that Noor Ahmad (deceased) had suffered five lacerated wounds, one on the left cheek, the other on the back side of head, the 3rd and 4th on the right chest and the 5th on the right shoulder. According to him, the first and the 5th wounds had burnt and inverted edges and blackening around. On dissection he found mandible bone of the left side, base of skull and occipital bone fractured. In his opinion, death in this case occurred due to shock and haemorrhage on account of injuries on the vital organs of the body, that is the brain. All the injuries, according to him, were anti-mortem and injuries Nos.1 and 5 were caused by a fire-arm and injuries Nos.2, 3 and 4 by a blunt weapon. All these injuries were sufficient to cause immediate death in the ordinary course of nature. He proved the post-mortem report (Exh.P.D.) and the diagram of injuries (Exh.P.D./1).
8. On the same day, he conducted post-mortem examination of the dead body of Muhammad Yaqub and noticed a lacerated wound 2 c.m. x 2 c.m. x muscle deep on the right side of head; three fire-arm entry wounds, each 1 c.m. x 1 c.m. In diameter in an area of 8 c.m. x 6 c.m. On the middle part of right thigh having burnt and inverted edges besides blackening; and an abrasion 2 c.m. x 2 c.m. On the outer side of right foot. On dissection he noticed subdural haematoma and congested meninges under injury No,1 and underlying muscles burnt and bone fractured under injury No,2. In his opinion, death in this case occurred due to shock and haemorrhage on account of injuries Nos.1 to 3 which were sufficient in the ordinary course of nature to cause death. He proved post-mortem report (Exh.P.F.) and diagram of injuries (Exh.P.F./1).
9. On the same day, he conducted autopsy on the dead body of Muhammad Nawaz and found three lacerated wounds, the first being 3 c.m. x 2 c.m. Bone deep on the right side of head; the second being five fire-arm lacerated entry wounds, each of the dimension of 1 c.m. x 1 c.m. With inverted and burnt margins on the front upper side of the right thigh alongwith three fire-arm exit wounds on the lateral side, all in an area of 12 c.m. x 10 c.m.; and the third being a lacerated wound 4 c.m. x 1 c.m. x muscle deep on the outer and lower part of the left leg. On dissection he found parietal bone fractured, subdural haemotoma present and meninges congested under injury No,1 and femoral altery ruptured on the lateral side and two bullets were present in the muscles. In his opinion, death in this case occurred due to injuries Nos.1 and 3 caused by a blunt weapon, while injury No,2 by a fire-arm, resulting in death by shock and haemorrhage in the ordinary course of nature. He proved postmortem report (Exh.P.E.) and skiagram of injuries (Exh.P.E./1).
10. Earlier on 3-6-1991 at 6-00 p.m. The doctor had medically examined Muhammad Iqbal P.W. And had found six, fire-arm injuries, out of them four were located on the different parts of his right leg, all simple, and two on his left knee joint, both grievous. Since the injured was in serious condition, he was referred to Nishtar Medical Hospital, Multan. He proved medico-legal report (Exh.P.G.) and the diagram of injuries (Exh.P.E./1).
11. On the same day, a little after 6-00 p.m. He medically examined Muhammad Riaz P.W. And found a fire-arm injury on the back of left leg with burnt margins and a lacerated wound caused by a blunt weapon on the upper part of the forehead, both simple. He proved post-mortem report (Exh.P.H.) and the sketch of injuries (Exh.P.H./1).
12. On the same day at 6-20 p.m. He medically examined Muhammad Yousuf P.W. He had four lacerated wounds caused by blunt weapon, one on the right side of head, the other on the top of it, 3rd on the middle of left thigh and the 4th a contused swelling on the left cheek. He proved he medico-legal report (Exh.P.J.) and the skiagram of injuries (Exh.PJ./1).
13. Allah Yar complainant (P.W.7), Muhammad Hussain (P.W.8), Muhammad Iqbal (P.W.9) and Riaz Hussain (P.W.10) had given the ocular account of the occurrence besides deposing about the motive. Their testimony finds reflection in the above narration of the prosecution case and the same may be subjected to detailed appraisal in due course, where necessary.
14. The last witness was Inspector Muhammad Ilyas (P.W.12). He gave the details of investigation. His role as Investigator has already been outlined.
15. The learned Prosecutor gave up Yousuf, Allah Ditta, Khuda Bakhsh, Habib Khan, Manzoor Hussain, Muhammad Malak and A.S.I. Allah Ditta P.Ws. As unnecessary and tendered in evidence the copy of Khasra Girdawari (Exh.P.EE.), copy of Warabandi (Exh.P.FF.), report of Chemical Examiner ' (Exh.P.GG.), report of Serologist (Exh.P.HH.) and report of Forensic Science Laboratory (Exh.P.JJ.) and closed the prosecution case.
16. The appellants and their acquitted co-accused in their respective' statements denied all the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implication, professed innocence. Muhammad Mansha appellant and his brother Muhammad Aslam acquitted accused and Muhammad Rafique appellant pleaded alibi. Taj Muhammad appellant, however, admitted his participation in the occurrence and made a lengthy statement, giving his version of the occurrence. He alleged that a day prior to the occurrence when Muhammad Yousuf P.W. Was irrigating his field with the canal water, he (appellant) noticed that the water was flowing into his cotton field through a rat hole causing damage thereto and he asked him to close it but he refused to do so and he gave him 2-3 slaps. According to him, to avenge this insult, the complainant party consisting of 2025 persons, including the deceased and the injured, armed with sticks, on the following day trespassed into his residential Bhaini where his wife Mst. Naik Bibi and his daughters Mst. Zahoor Fatima and Mst. Shakooran Bibi were present. He alleged that his wife was injured by the assailants, who later died in the occurrence, and when his daughters tried to rescue her, they too were given blows by them and the injured persons.
According to him, he resisted the attack but he was also given beating and seeing no alternative he picked up his licensed gun and to save his person as also those of his wife and daughters, fired at the assailants and in that process his daughters caused injuries to Muhammad Yousuf and other P.Ws. With `Sotas'. He complained that the police sided with the complainant party and did not get him and the injured ladies medically examined despite repeated requests. He alleged that on the day of occurrence the complainant party had no turn of water and in collusion with the police they got him and the other male members of his family, who were not present at the time of occurrence, falsely implicated in this case. He tendered in evidence the photo copy of an application addressed by him to the Deputy Commissioner for medical examination. In his defence he produced Dr. Mojeeb-ur-Rehman, Medical Officer, Rural Dispensary Garh More, Tehsil Mailsi as (D.W.1). He deposed that on 3-8-1991 he had medically examined Mst. Naik Bibi, Mst. Zahoor Fatima and Mst. Shakooran Bibi, after admitting them to the Rural Dispensary and later referred them to the Medical Superintendent, Tehsil Headquarter Hospital, Mailsi, for X-ray examination. He proved the references as also medico-legal certificates (Exh.D.D.), (Exh.D.E.) and (Exh.D.F.) of the injured ladies.
17. On the conclusion of the trial, by the judgment now under challenge, the learned trial Judge convicted and sentenced the appellants in the manner aforesaid, after acquitting Muhammad Aslam co-accused on benefit of doubt. Aggrieved by these findings, where the appellants came up in appeal, the State has challenged the acquittal. Both the appeals are being disposed of together.
18. It was argued on behalf of the appellants that the complainant party, being the members of a big tribe of original inhabitants of the village, annoyed by the slaps given to Muhammad Yousuf P.W. a day earlier to the occurrence by Taj Muhammad appellant, who had only one family of refugees in the village, came to his Bhaini, after arming themselves with `Sotas', in order to avenge the insult and attacked his womenfolk, causing them injuries. According to the learned counsel, Taj Muhammad appellant, being the only male member of the family present at the Bhaini, in order to save his womenfolk, in a compelling situation, picked up his licensed .12 bore gun and standing in the door of the room, in which fodder cutting machine was installed, in self-defence and the defence of his old wife and young daughters, fired at the aggressors, as a result of which Muhammad Yaqub and his brothers Noor Ahmad and Muhammad Nawaz were killed and Muhammad Iqbal, Muhammad Riaz and Muhammad Yousuf P.Ws. Were injured. He contended that neither Muhammad Aslam acquitted accused nor his brother Muhammad Mansha appellant, both sons of Taj Muhammad appellant, nor his relation Muhammad Rafique appellant, were present at the Bhaini at the time of occurrence and they were falsely implicated in this case in order to rope in as many members of the appellants' family as possible out of sheer mala fides. He canvassed that Allah Yar complainant (P.W.7), in order to justify the aggression of his party, cooked up a false motive and concocted a twisted version of the occurrence that on the day of occurrence when he accompanied by Muhammad Yaqub (deceased) and Noor Ahmad (deceased) was returning to their land, after having a round of the watercourse in order to safeguard their turn of water during which they closed unauthorised diversion of water to the appellants' paddy field and reached near the Bhaini of Taj Muhammad appellant, he alongwith two sons and a nephew suddenly attacked them with their respective .12 bore guns resulting in the death of three persons and injuries to the other three. He contended that it is a matter of common knowledge that in the canal irrigated areas in order to safeguard the turn of water ordinarily only one person takes the round of the watercourse carrying a `Kassi' and other persons irrigate the field at the lower reach and there was no reason as to why three persons, and those too empty-handed, should have gone to have the round of the watercourse, but if at all they had chosen to do, then where were their `Kassis' and why they did not use them when they were being attacked by the accused party and none was noticed on or collected from the spot by the police? According to him, the prosecution story was also false that Muhammad Nawaz (deceased) and the three injured besides a number of persons were hoeing their cotton crop at a distance of about one acre from the Bhaini of Taj Muhammad appellant and they came to the spot attracted by the alarm raised by their companions during the course of occurrence because had it been so, they would have come armed with their `Vaholas' and hoes with which they could ordinarily defend themselves and their companions but during the investigation they were not found carrying any such implement. He urged that the police under the influence of some political personalities of the area not only suppressed the role of the complainant party but also refused to get the injured ladies of the accused party medically examined despite the directions of the Deputy Commissioner given on the application made by the brother of Taj Muhammad appellant. In support of his contention, the learned counsel frequently referred to the contents of the site plan, indicating the location of the Bhaini of Taj Muhammad appellant and his standing position in the door of its `Kotha' in which his fodder cutting machine stood installed.
19. On the other hand, it was argued on behalf of the State that in the background of strained relations between the parties emanating from their controversy over the unauthorised use of water by the accused party from the turn of canal water of the complainant party, when on the day of occurrence at about mid-day Allah Yar complainant accompanied by Muhammad Yaqub (deceased) and his brother Noor Ahmad (deceased) was returning to their field, which was being irrigated, and reached near the Bhaini of Taj Muhammad appellant situated on the bank of the watercourse, they were suddenly intercepted by the appellants and their acquitted accused Muhammad Aslam, all armed with fire-arms, and were attacked. According to the learned State counsel, the complainant and his two companions having been so attacked, raised alarm as a result of which Muhammad Nawaz (deceased) and a number of his companions, including Muhammad Iqbal, Muhammad Riaz and Muhammad Yousuf injured, who were hoeing their cotton field at a distance of about one acre, came running to rescue their relations but they too were attacked by the appellants and their acquitted co-accused as a result of which. Muhammad Nawaz (deceased) received fatal injuries and his three companions, namely, Muhammad Iqbal, Muhammad Riaz and Muhammad Yousuf were grievously injured. He contended that had the complainant party gone to the Bhaini of Taj Muhammad appellant with the intention of teaching the accused party a lesson, as contended by the appellants' counsel, they would not have gone there empty-handed to be killed and injured like sitting ducks. He urged that the dead bodies of all the three deceased were lying across the watercourse while the Bhaini of Taj Muhammad appellant was situated on opposite side thereof and the inverted edges of the fire-arm injuries with blackening around them indicated that the appellants and their acquitted co-accused had fired their respective shots from a very close range after jumping across the watercourse when the victims were fleeing for their life. In his opinion, this fact by itself falsified the defence version given by Taj Muhammad appellant that he was attacked in his Bhaini or near the door of the room in which his fodder cutting machine stood installed. He contended that Muhammad Mansha and Muhammad Rafique appellants and their acquitted co-accused falsely alleged their alibi and Taj Muhammad appellant alone took upon himself the liability of killing three innocent persons and causing grievous injuries to the other three, one of whom was injured with butts of guns used by him and his co-accused, but those injuries were attributed by him to his two young daughters who allegedly gave him Sota blows in defence of their mother.
' He asserted that to prove the so-called injuries of the ladies of the accused party, the defence evidence given by Dr. Mojeeb-ur-Rehman (D.W.1) was fabricated by him at the instance of that party and it was of no avail to the appellants because the injured ladies were not brought in the witness-box to depose about their injuries.
20. After carefully considering the two versions of the occurrence in juxtaposition in the light of the above arguments of the learned counsel representing the parties, we are of the opinion that the one given by the prosecution is more plausible and reasonable than that of the defence. The main watercourse, which is generally the property of the Government, is meant for the common use of all the persons irrigating their lands from it. Every irrigator, therefore, has to take a round of it in order to safeguard his turn of canal water for irrigating his land. On the- day of occurrence the complainant party was irrigating their field either from its own turn or from the borrowed one and Muhammad Yaqub (deceased) accompanied by his brother Noor Ahmad (deceased), either with or without Allah Yar complainant, were passing from near the Bhaini of Taj Muhammad appellant when they were suddenly accosted by him and his two sons and nephew, all armed with firearms.
It appears that during the course of taking the round of the watercourse, they closed. The cut in the watercourse from which the paddy field of the accused party was being irrigated unauthorisedly from their turn and on the return journey to their field being irrigating, they happened to pass from near the Bhaini of Taj Muhammad appellant in the natural course. Reaching there they seem to have protested to Taj Muhammad appellant and his sons and nephew against their unlawful act of diverting their water to their own field. This protest gave rise to a quarrel between them and the appellants and their acquitted co-accused in a violent response to the protest of their opponents, picked up their fire-arm and started firing at them. The alarm raised by the victims or noise created by their quarrel, attracted a number of persons of the complainant party, including Muhammad Nawaz (deceased) and the three injured persons, who were working at a short distance in their cotton field. They ran towards the spot, either empty-handed or with ordinary implements of hoeing, and in the frenzy they were also shot at by the accused, as a consequence of which Muhammad Nawaz was fatally injured while Muhammad Iqbal, Muhammad Riaz and Muhammad Yousuf also sustained fire-arm injuries in the rescuing process. Muhammad Yousuf sustained injuries with the butt of guns because perhaps by that time the accused party had exhausted their ammunitions. We are not prepared to believe that he suffered injuries at the hands of young daughters of Taj Muhammad in their efforts to rescue their mother. There seems to be no substance in the defence version that the complainant party had come to avenge the insult of the incident allegedly taking place a day earlier in which Muhammad Yousuf was slapped by Taj Muhammad appellant. Had they come to take revenge, they would not have come there empty- handed, particularly when they knew that the relations between them and their opponents were already strained and the latter had licensed fire-arms. The motive alleged by the accused party even otherwise appears to be unconvincing because Muhammad Yousuf had not purposely drained out the canal water from his turn into the cotton field of Taj Muhammad appellant nor he was expected to spoil such water. It was the rat hole from which the water was going out into his field for which Muhammad Yousuf was not responsible but if he was still beaten by Taj Muhammad appellant, as he claims, then the latter was obviously a hot-tampered or a short-tampered person, ready to pick up quarrel on every passing impulse.
21. The location of the dead bodies and the nature of their injuries by themselves indicated that they had been fired at the victims from a very close range after the assailants had crossed over the watercourse from the side of their Bhaini to the field opposite thereto when the victims were on the run for their lives. So they did not attack Taj Muhammad appellant and his armed companions in or outside their Bhaini. All these events taken together lead to no other conclusion except that the accused party was the aggressor and the complainant party the aggressed. Taj Muhammad appellant admitting his participation accepted the responsibility of killing three persons and causing injuries to two others but he took up this position in order to save the skin of his co- accused, out of whom two were his sons and one was his nephew. The different nature and dimension of the fire-arm injuries on the dead bodies and of the injured persons indicated that the ammunition of different kinds had been used which by itself indicated that the same had been fired from different weapons. Even otherwise one person armed with a .12 bore gun could not cause so many casualties. Therefore, the presence of the appellants and the acquitted co-accused at the time of occurrence, as alleged by the prosecution, was not improbable. The defence plea that Muhammad Yousuf had been caused injuries with blunt weapon used by the daughters of Taj Muhammad appellant, seems to be without force. In a melee like the one in the case, ladies would not dare to participate by picking up Sotas and giving injuries to a person. Muhammad Mansha and Muhammad Rafique appellants and Muhammad Aslam acquitted co-accused pleaded alibi but they did not adduce any evidence in support thereof. Mst. Zahoor Fatima and Mst. Shakooran, the daughters of Taj Muhammad appellant, alleged injuries at the hands of the complainant party but they did not enter the witness-box to prove them. The testimony of Dr. Mojeeb-ur-Rehman (D.W.1) who proved their medico-legal reports, was of no avail to them. All it appears to be an afterthought in order tolc make out a false defence.
22. It has been vehemently argued on behalf of the State that Muhammad Aslam acquitted co- accused was erroneously acquitted by the learned trial Judge on a minor discrepancy in the statement of Allah Yar complainant in the where he stated that he (deceased) was armed with a rifle but there was no injury on any deceased or injured person caused by a bullet fired from a rifle and on this ground alone he could not be acquitted. In our view, this variation between the ocular account and the medical evidence was sufficient to confer benefit of doubt on him and he was rightly acquitted by the trial Court.
23. In view of the above, the prosecution, in our opinion, had fairly succeeded in proving the guilt of Taj Muhammad, Muhammad Mansha and Muhammad Rafique appellants, beyond any shadow of doubt, for committing murder (Qatl-i-amd) of Muhammad Yaqub, Noor Ahmad and Muhammad Nawaz and launching murderous assault on Muhammad Iqbal, Muhammad Riaz and causing simple injuries to Muhammad Yousuf, in furtherance of their common intention, by adducing reliable evidence of motive, coupled with ocular evidence and further supported by medical evidence. There is, therefore, no force in both the appeals and the same are dismissed except to the extent indicated below. Since the death of Muhammad Yaqub, Noor Ahmad and Muhammad Nawaz was not proved in accordance with the mode of proof provided in section 304, P.P.C., the appellants could not be convicted under section 302(a), P.P.C. And awarded the sentence of Qisas, nor they could be awarded sentence of fine. Their conviction and death sentence is, therefore, altered to the one under section 302(b)/34, P.P.C. As Tazir and their sentence of fine is set aside.
Only to this extent their appeal is accepted.