SAAD SAOOD JAN, JSher Zaman, his sons, Sultan and Lal, and nephew, Mehrban, have been convicted by the learned Additional Sessions Judge at Rawalpindi for the offences under sections 307 and 302, read with section 34, Pakistan Penal Code, on the allegations4hat they in furtherance of their common intention, committed the murder of Din Muhammad deceased and made murderous assaults upon his sons-in-law, Noor Ahmad (P. W. 13) and Nur Elahi (P. W. 14). For the offence under section 302 they have been sentenced to death and for the offence under section 307 they have been directed to suffer rigorous imprisonment for a period of five years. The appellants have filed this appeal against their conviction and sentence and the learned Additional Sessions Judge has also made a reference for confirmation of the death sentence. This judgment will dispose of both the appeal and the reference.
2. The occurrence took place on 29-11-70 at about 7 a.m. In the residential area of Dhok Dharal which falls in the village Chelo of Police Station, Golra. It was alleged by the prosecution that at the relevant time the deceased had taken a bullock cart to collect some stones from the scene of occurrence. The appellants came there. Sher Zaman and Sultan were parrying lathis, Lal had a hatchet while Mehrban was armed with a '12 bore gun. They attacked the deceased who raised an alarm. On hearing the alarm his sons-in-law, Noor Ahmad (P. W. 13), and Nur Elahi (P. W. 14), arrived at the scene of the occurrence. Mehrban fired at Noor Ahmad (P. W. 13) but the shot missed the target. After that the appellants attacked Noor Ahmad (P. W. 13) and Nur Elahi (P. W. 14). The deceased expired on the following day in the hospital.
3. The occurrence was reported at the Police Station, Golra on the same day at about 9 a.m. By Noor Ahmad (P. W. 13). After the registration of the case S. I. Mansoor A.I Beg (P. W. 15) proceeded to the scene of occurrence. Amongst other articles he collected an empty cartridge from the spot.
Sher Zaman was arrested on 10-12-70. After his arrest Sher Zaman assisted in the recovery of a blood-stained bamboo stick (Exh. P-11) from the manger of his cattle shed. This recovery was witnessed by Muhammad Yaqub (P. W. 10) and one Abdul Rashid who was not examined at the trial. Mehrban was arrested on 15-12-70. He produced a gun (Exh. P-14) and 12 empty cartridges.
This recovery was witnessed by Misri Khan (P. W. 5) and Abdul Rashid. The gun and the empty cartridge recovered from the spot were examined by Sh. Abdul Rashid (P. W. 16) a fire-arm expert from the Forensic Science Laboratory, Lahore. He was of the opinion that the empty cartridge had been fired from the gun in question.
4. The post-mortem examination of the deceased was performed by Dr. Abdul Majid (P. W. 1). He found three contused wounds on the dead body caused by blunt weapon. Of these, two were located on the head one on the right side and the second on the middle of the head. The third was on the left fore-arm. The doctor was of the opinion that the contused wounds on the left fore-arm could be caused by a fall on hard surface. As a result of the injuries on the head the frontal, parietal and right temporal bones were found fractured. In the opinion of the doctor the head injuries were sufficient in the ordinary course of nature to cause death.
5. Dr. Abdul Majid also examined Noor Ahmad (P. W. 13). He found a contused wound on the left side of forehead and swelling with abrasion on the right cheek of Noor Ahmad (P. W. 13). Both injuries were simple in nature and caused by a blunt weapon.
6. Noor Elahi (P. W. 14) was also examined by Dr. Abdul Majid. He had a contused wound caused by. a blunt weapon in the middle of head. This injury was declared to be grievous in nature.
7. Sher Zaman appellant was examined by Dr. Abdul Majid on 29-11-1970. He bad the following injuries on his person:-
(1) A contused wound on the left side of the head 2----- x ----- x bone deep;
(2) Swelling on the left temple 2" x 1".
(3) A contused wound on the left ear ----- x 1/6--- x 1/6---.
(4) Two abrasions on the left ear with lacerated wound 1" x ----- x skin deep.
(5) Minor abrasions on the left knee.
All the injuries were simple in nature and caused by a blunt weapon.
8. The appellants pleaded not guilty to the charges against them: Sher Zaman admitted that he was present at the scene of the occurrence at the relevant time. He, however, stated that on the day of the occurrence he had gone to collect stones from the village shamilat. The deceased along with Noor Ahmad (P.W. 13) and Noor Elahi (P. W. 14) came there and assaulted him. He raised an alarm which attracted some other co---villagers. He and the other co-villagers in self-defence threw stones on the complainant party. He also stated that he had no motive to kill the deceased at all. Lal, Sultan and Mehrban, however, denied the allegations of the prosecution in their entirety.
Mehrban admitted that the gun re--covered from him was his property. He further stated as he was fond of shikar be would often use his gun. Thus, it was not difficult for the complainant party to procure empty cartridges which had been fired from his gun.
9. The case of the prosecution rests mainly upon the ocular evidence furnished by Noor Ahmad (P.
W. 13) and Noor Elahi (P. W. 14). Abdul Rashid and Karam. Elahi were also stated to have witnessed the occurrence but they were not examined at the trial. Noor Ahmad (P. W. 13) and Nur Elahi (P. W.
14) deposed that at the relevant time the deceased took out his cart for lifting stones which were lying at the back of his house. They heard an alarm and ran to the spot. They saw the deceased being hit by Sher Zaman and Sultan. As Nur Elahi (P. W. 14) attempted to rescue the deceased he was given a hatchet blow by Lal with the blunt side. Mehrban fired at Noor Ahmad (P. W. 13).
However, Noor Ahmad (P. W. 13) sat down and thus saved himself. Sultan then gave a lathi blow to Noor Ahmad.
10. There can be no doubt that both Noor Ahmad (P. W. 13) and Nur Elahi (P. W. 14) were present at the scene of the occurrence for they bore injuries on their persons which could by no means be regarded as self inflicted. Even Sher Zaman appellant has not denied the presence of these two witnesses at the relevant time. Thus the only questions for determina--petition are whether the occurrence took place in the manner suggested by the witnesses and whether all the appellants had taken part in the occur--rence.
11. It will be observed that immediately after the occurrence Sher Zaman appellant had a large number of injuries on his person. The doctor who examined Sher Zaman was not questioned at all on the point whether these injuries could be suffered by friendly hands. Obviously this was not so. It was thus clear that Sher Zaman received his injuries at the same time as the complainant party did.
12. It is in evidence that both Noor Ahmad (P. W. 13) and Nut Elahi (P. W. 14) went together to the police station immediately after the occurrence. The deceased was also with them at that time.
Although the F.I.R. Was dictated by Noor Ahmad (P. W. 13) both the deceased and Nut Elahi (P. W. 14) were also present on the occasion. In the F. I. R. No explanation whatsoever has been given as to how Sher Zaman came to receive his injuries.
13. At the trial an attempt was made to explain the injuries of Sher Zaman. Noor Ahmad (P. W. 13) stated that Noor Elahi (P. W. 14) was armed with a lathi and he gave a lathi blow on the person of Sher Zaman. It is to be observed that the injuries of Sher Zaman were caused by more than one blow. Nur Elahi (P. W. 14) deposed that at the relevant time he was carrying a nail stick (chukka) and that he gave three or four blows with that weapon to Sher Zaman. In the statements before the committing Magistrate and the police he did not refer to any chukka but stated that he had given- only one stick blow to Sher Zaman. It will thus appear that these witnesses have been attempting to conceal their own precise role in the occurrence. It may also be mentioned that Nur Elahi (P. W.
14) stated before the committing Magistrate that at the time of the occurrence 20 other villagers had gathered at the spot. None of them has been produced to provide independent corroboration to the prosecution version.
14. The motive for the occurrence was stated to be an incident which had taken place about seven days earlier. It was alleged that the cattle of Sultan had damaged the crops of Noor Ahmad (P. W.
13) and Nur Elahi (P. W. 14) and on that account Noor Ahmad (P. W. 13) and Nur Elahi (P. W. 14) had given beating to Sultan. If this were indeed so then the appellants should have opened the attack on Noor Ahmad (P. W. 13) and Nur Elahi (P. W. 14) and not on the deceased who was only their father-in-law and bad no prior enmity whatsoever with the appellants. In the circumstances it does not appear that the witnesses have made correct statements with regard to the motive for occurrence.
15. The version of Sher Zaman that the occurrence started when he was attempting to collect stones from shamilat deh finds support from the fact that it is common ground between the parties that the place where the occurrence took place contained a large quantity of stones. The doctor who performed the post-mortem examination of the deceased and examined Nur Elahi (P.
W. 14) did not rule out the possibility that their injuries could not be caused by hurling of bricks. The same holds good in the case of the injuries received by Noor Ahmad (P. W. 13). It is the case of the prosecution itself that the deceased had gone to collect stones from the scene of the occurrence.
The possibility, therefore, cannot be ruled out that the occurrence started when a dispute arose between the parties over the firing of stones.
16. After his arrest Sher Zaman had led to the recovery of a blood--stained stick. It may be stated that Sher Zaman too had a bleeding injury on his person. This being so, the blood found on the stick could very well be his own. In any case as he has admitted his participation in the occurrence, the recovery of the blood-stained stick at his instance is not of much significance.
17. The weapons recovered at the instance of Lal and Sultan do not have any blood on them and are of a type which would be found with any agriculturist. As such these recoveries do not further the case of the prosecution in any manner.
18. Mehrban has admitted that the gun in this case belonged to him. As regards the empty cartridge there is a serious discrepancy between the statements of Nur Elahi (P. W. 14) and the Investigating Officer. The Investigating Officer deposed that the empty cartridge was recovered from the scene of the occurrence. Nur Elahi (P. W. 14) on the other hand has said that when going to the police station he had taken the empty cartridge with him. The only recovery witness examined by the prosecution Misri Khan (P. W. 5) is a close relative of Nur Elahi (P. W. 14). He compromised his own credibility by intentionally concealing his relationship with Nur Elahi (P. W. 14). Further, when he was confronted with his earlier statement, which he made before the committing Magistrate on the point of relationship, he blandly confessed that he had made a mistake. It is difficult to place implicit reliance upon a witness of this nature.
19. The defence of Sher Zaman that the co-villagers had joined him in throwing stones at the complainant party seems highly improbable. However, considering that three persons were injured from the side of the complainant party---two of them seriously, it does appear that Sher Zaman was entirely unassisted at the time of the occurrence.
20. Summing up the above discussion we find that the eye-witnesses have not given an accurate account of the occurrence for they have made an effort to conceal or minimize their role in causing injures to Sher Zaman. The motive attributed to the appellants is also insufficient to explain why they should have attacked the deceased. On the other hand there is a possibility that the occurrence started over a dispute with regard to the lifting of stones. It could very well be a sudden flare-up. Since it is not possible to determine with certainty as to who started the occurrence it cannot be said that Sher Zaman was the aggressor. He has soave serious Injuries on his person. If it was the complainant party who first started throwing stones at Sher Zaman then he and iris companions whoever they were had the right to defend themselves. The injuries on the complainant party are not too numerous so as to raise an inference that it was a one---sided affair. In the circumstances we think that there is material on the record which does not rule out the possibility that Sher Zaman and his companions had acted in self-defence. We, therefore, give the appellants the benefit of doubt, set aside the convictions and sentences and direct that they shall be acquitted. They shall be set at liberty forthwith if not required, in any other case. The death sentence is not confirmed.