Sarfraz son of Wali Dad, aged 25 years, and Riaz son of Nusrat, aged 22 years, both utrine brothers, have been convicted under section 302/34, P. P. C. For the murder of Sikandar and were sentenced to transportation for life vide judgment dated the 31st of August 1972 of the Sessions Judge, Jhang.
The convicts have filed separate appeals. Sarfraz has filed Criminal Appeal No. 831 of 1972, and Riaz has filed Criminal Appeal No. 833 of 1972. On the complainant side Falik Sher (P. W. 10) has filed Criminal Revision No. 1088 of 1972, for the enhancement of sentence awarded to both the appellants from transportation for life to death. The appeals as well as criminal revision are being taken up and disposed of together by this judgment,
2. The occurrence took place on the 29th of September 1971, at sun set time in village Vijhlana, at a distance of four miles from Police Station Saddar Jhang. Falik Sher (P. W. 10) paternal uncle of the deceased made a statement (Exh. P. A.) which was recorded at 8-00 p.m. On the same day by Fazal Karim S.I. (P. W. 13) at Bara Talian where he had gone on patrol duty. On the basis of this statement formal F.I.R. (Exh. P. A./1) was registered at Police Station Saddar Jhang, on the same day at 8-45 p.m. By Ahmad Sher A. S. I. (P. W. 4).
3. The motive for crime as stated in the F. I. R. Is that Riaz appellant had a suspicion that the deceased was carrying on an illicit relationship with Mst. Khurshid, the real sister of Riaz appellant and utrine sister of Sarfraz appellant.
4. The prosecution has produced three eye-witnesses of the occurrence, namely, Falik Sher (P. W.
10), paternal uncle of the deceased, Sher Khan (P. W. 11) and Sher (P. W. 12).
5. Riaz appellant was arrested on the 30th of September 1971, by Ghulam Hussain (P. W. 6), whereas Sarfraz appellant was arrested on the same day by Fazal Karim S.I. (P. W. 13).
The relevant recoveries in this case are dang P. I (not blood-stained) picked up from the land of the deceased and taken into possession vide memo. Exh. P. B., dated the 29th of September 1971. The attesting witnesses are Muhabbat Khan (P. W. 8) Falik Sher (P. W. 10) and Nur Muhammad (not produced) besides the Investigating Officer. According to the prosecution version this dang had been used by the deceased; blood--stained ballam P. 2 recovered at the instance of Sarfraz appellant and taken possession vide memo. Exh. P. D. Dated the 30th of September 1971. The attesting witnesses are Bhai Khan (P. W. 9) and Muhabbat Khan (P. W. 8) besides the Investigating Officer; and dang P. 3 (not blood-stained) recovered from Riaz appellant and taken into possession vide memo. Exh. P. F. Dated the 30th of September 1971. The attesting witnesses are the same as above; blood-stained shirt got removed from the person of Riaz appellant at the time of his arrest and it was taken into possession vide memo. Exh. P. G./1, dated the 30th of September 1971. The attesting witnesses are Ghulam A.I (not produced) and Ghulam Hussain H. C. (P. W. 6). According to the report of the Serologist Exh. P. N., the above-mentioned blood-stained ballam was found to be stained with human blood.
6. Dr. Ghulam Mustafa (P. W. 14) conducted post-mortem examina--petition on the dead body of the deceased at 9-40 p.m. On the 30th of September 1971 and found incised wound chest cavity deep on the right nipple on the front of right chest. In his opinion, death was due to shock and haemorr--hage caused by this injury which was sufficient to cause death in the ordinary course of nature. He stated that the said injury could have been caused by ballam P.
2. He stated further in the cross-examination that the injury could be caused by a sharp-edged weapon but it was necessary that it should be a point weapon.
Dr. Muhammad Asgher Rana (P.W.2) medically examined Riaz appellant at 1.15 p.m. On the 30th of September 1971, and found a contused wound scalp deep on the left side of the head. The injury was subsequently declared as simple.
7. Sarfraz appellant in his statement before the trial Court totally denied having participated in the occurrence. He disowned ballam P. 2 and stated that he had been falsely implicated in this case.
Riaz appellant in his statement before the trial Court admitted participa--petition in the occurrence but gave his own version. He stated that at the time of occurrence he was returning to his house after serving meals to two guests at his dera. The deceased had ambushed himself in shrubs near a beri tree close to his house. The deceased came out and gave a dang blow in his head. Riaz appellant was carrying utensils and a chhuri. He became senseless and fell down. He could not say whether he caused injury to the deceased or the deceased fell on the chhuri which had fallen to the ground and was thereby injured. He further stated that he did not know as to who brought him from the place of occurrence to the hospital. He was senseless after having suffered the injury on the head.
8. In the F. I. R. The occurrence is reported to have taken place In the following manner. At sunset time the deceased had come to his paternal uncle, namely Falik Sher (P. W. 10). At that time Sher Khan and Sher P. Ws. Were sitting with Falik Sher P. W. The three of them went with the deceased towards the behini of animals. When they arrived near the beri tree, Riaz appellant armed with dang and Sarfraz appellant armed with ballam suddenly appeared. Riaz appellant gave a lalkara to the deceased to the effect that he would not be spared. Thereafter, he attacked the deceased with his dang. But the deceased was also carrying a lathi and he gave a blow with the same which fell on the head of Riaz appellant. Then Riaz appellant gave a lalkara to Sarfraz appellant as to what he was waiting for and that he should strike with his ballam. Thereupon, Sarfraz appellant gave a ballam blow to the deceased which fell on his right chest. T he deceas--ed fell down. The three eye-witnesses raised alarm whereupon the appellants decamped, The deceased died on the spot.
9. I have heard learned counsel for both the sides and have carefully perused the record. It may be pointed out at the outset that the three eye--witnesses of the occurrence in. This case are interested and partisan. Falik Sher P. W. Is paternal uncle of the deceased, Sher Khan P. W. Is the son of maternal uncle of the father of Falik Sher P. W. And Sher P. W. Was a co-accused with Falik Sher P.
W. In a case under section 364, P. P. C. Regarding the abduction of Mst. Niamat Bibi registered at Police Station Saddar Jhang. Both Sher Khan and Sher P. Ws. According to the F. I. R. Had come to see Falik Sher P. W. On the day of occurrence and had their meals with him. It is stated in the F. I. R.
By Falik Sher P. W. That the deceased came to them and said that he was going to his cattle-shed.
Thereafter, it is stated in the F. I. R. As well as the statements of the P. Ws. That they said to him that they would also accompany him. It is difficult to understand as to what was the interest or purpose of these three eye-witnesses in accompanying the deceased to the cattle-shed. Then the prosecution version is that when they reached near the beri tree, the two appellants came out suddenly; Riaz appellant raised a lalkara and tried to attack the deceased but in the meantime the deceased who was carrying a lathi gave a lathi blow to him which fell on the head of Riaz appellant. Thereafter, it is stated that Riaz appellant instigated Sarfraz appellant to use his ballam and thus Sarfraz appellant gave a ballam blow which fell on the chest of the deceased. This injury led to his death. It may be noted that the occurrence is not denied by Riaz appellant although be has given his own version respecting the same. There has been a recovery of ballam P. 2 from Sarfraz appellant which is a corroborative piece of evidence. According to the medical officer the injury caused to the deceased was by a sharp-edged-pointed weapon. It can, therefore, be said with confidence that ballam P. 2 was used in the commission of crime. It is also an admitted fact that the deceased had inflicted a dang blow which fell on the head of Riaz appellant. According to the medical officer who examined him, he remained in hospital for 24 hours and was feeling drowsy possibly due to this injury. It is, therefore, evident that the occurrence did take place in which both the appellants were involved on the one side and the deceased on the other. But the point which requires determination is as to how far reliance can be placed on the testimony of partisan and interested eye--witnesses. Two of the eye-witnesses are related to the deceased whereas the third one is partisan. Their testimony must be considered with abundant caution even though it is corroborated by the recovery of ballam P. 2 from Sarfaraz appellant. The other aspect of the case which must not be ignored is that the motive has not been established by the prosecution. The witnesses of motive in this case are Waryam (P. W. 7) who is cousin of the deceased, and Falik Sher P. W. Who is paternal uncle of the deceased. Both these witnesses are closely related to the deceased and even if there had been a quarrel for some other reason between the accused and the complainant parties, they were likely to set up a motive of this nature. It maybe pointed out that Riaz appellant in his statement before the trial Court had also set up an identical motive. He stated that he, had illicit intimacy with Mst. Miran, sister of the deceased and that, therefore, the deceased had at--tacked him and gave him a blow on his head with his dang. Since the ocular testimony in this case is to be considered with abundant caution, I am of the view, that the principle of sifting of evidence shall have to be applied. As it bas already been pointed out, motive in this case has not been estab--lished. In that view of the matter, what we are left with is that probably for some reason or the other which could not be ascertained a sudden fight took place between the complainant and the accused parties in which dang was used by the deceased through which one injury was caused on the, head of Riaz appellant and in retaliation ballam was used by Sarfraz appellant against the deceased thereby causing one Injury which led to his death. 1 am, therefore, of the considered opinion that the case of the appellants is covered by Exception 4 to section 300, P. P. C. And each of them would be responsible for his own act.
According to the prosecution version Riaz appellant did not inflict any injury to the deceased. Only lalkara or instigation is attributed to him. He in fact received one injury at the hands of the deceased. Since he has not inflicted any injury to the deceased, B in the absence of the application of section 34, P. P. C. To the case, he~ should have been acquitted. I accordingly set aside his conviction and sentence and acquit him. His appeal is accepted. He shall be released from jail forthwith if not wanted in any other case.
So far as Sarfraz appellant is concerned, he is stated to have caused the ballam injury on the chest of the deceased which led to his death. In the circumstances, I alter his conviction from section 302, P. P. C. To that of section 304 (It. P. P. C. Similarly his sentence is altered from that of` transportation for life to seven years' R. I. His appeal is accepted to this extent.
10. In the light of what has been discussed above, Criminal Revision No. 1088 of 1972 is hereby dismissed.