1. ' SALEEM AKHTAR, J.---The appellants were tried for the murder of Bashir Ahmed and were convicted by the learned Trial Court under section 302/34, P.P.C. Atta Hussain and Huzoor Bakhsh were sentenced to death and fine of Rs,5,000 each and in default to undergo two years' RI. Fida Hussain was sentenced for imprisonment of life and fine of Rs,5,000 and in default to undergo two years' RI. They were further directed to pay Rs,5,000 each as compensation to the legal heirs of the deceased and in default to undergo six months' simple imprisonment. The appellants filed appeal before the High Court and reference was also made for confirmation of the death sentence. Nazir Ahmed filed revision application for enhancement of sentence of Fida Hussain. The High Court by the impugned judgment dismissed the reference and the revision application. The sentence of death awarded to. Atta Hussain and Huzoor Bakhsh was altered to imprisonment for life. With his modification the appeal was also dismissed.
2. The brief facts are that on 14-12-1984 at about 7/8 a.m. Khalid P.W.5 and Abdul Karim, P.W.6 were present at the tea stall of Maqbool alias Kabul P.W.7. Bashir Ahmed, deceased alongwith Allah Diwaya, the complainant, was sitting in front of the shops which were under construction. At that time a tractor with a trolley driven by Fida Hussain stopped near there from which Fida Hussain armed with iron pipe and Huzoor Bakhsh and Atta Hussain armed with iron Kassis came out. Fida Hussain threatened Bashir Ahmed that he will teach him a lesson for constructing shop and hit him on right arm and left hand and instigated his companions not to left him remain alive. Huzoor Bakhsh gave Kassi blow on the head and Bashir Ahmed fell down. Atta Hussain also hit on his head with Kassi and injured him. When Bashir Ahmed fell down all the three accused got on his abdomen and kicked him. On alarm being raised by Allah Diwaya the complainant, Qubool, Khalid and Abdul Karim reached the spot and resist the deceased but he soon thereafter died in the hospital. The learned Trial Court convicted and sentenced the appellants as aforestated against which an appeal was filed which was dismissed and the death sentence was converted into life imprisonment. In this regard the learned Judges of the High Court observed as follows:- "In the circumstances discussed above, the trial Court had rightly convicted the appellants under section 302/34, P.P.C.. As regards the sentence we find scope for its modification because according to the prosecution Atta Hussain and Huzoor Bakhsh had both given Kassi injuries on the head of the deceased resulting in his death but in the post-mortem examination report only one incised wound was found on the head of the deceased which was dangerous in nature. In this view of the matter, it is not possible to say with certainty as to which of the two appellants had caused the fatal injury. We, therefore, think that the ends of justice will be met if the sentence is altered from death to imprisonment for life."
2. ' While granting leave to appeal it was observed as follows:- "Learned counsel appearing in support of this petition submitted that he does not want appraisal of evidence but there is an error patent in the judgment of the High Court which has resulted in miscarriage of justice.
3. ' It is submitted that according to the post-mortem report the deceased had one incised wound 3" x 1/2" bone deep on left side of the head but the High Court observed:-- ' As regards the sentence we find scope for its modification because according to the prosecution Atta Hussain and Huzoor Bakhsh had both given Kassi injuries on the head of the deceased resulting in his death but in the post-mortem examination report only one incised wound was found on the head of the deceased which was dangerous in nature.'
4. ' Learned counsel submitted that it is not a minor contradiction but it falsifies the entire prosecution case with the result the petitioners were entitled to its benefit in the form of acquittal, which the High Court denied without any legal justification."
5. ' From the aforestated order it seems that the learned counsel for the appellant had relied on the fact that according to the post-mortem report the deceased had one incised wound, bone deep on left side of the head which according to him falsified the entire prosecution case. The medical report relied upon by the learned counsel for the appellants describes one incised wound and another lacerated wound both bone deep on the head. There were six injuries on the deceased.
6. Two are relevant for the purpose of this case which were described as follows:- "Incised wound 3" x 1/2" x bone deep on left side of the head running obliquely. The margans of wound were sharp but rapped at some place.
7. ' Lacerated wound 2" x 1/4" x bone deep on the front middle of the head running obliquely near the fore head."
8. ' In the F.I.R. The complainant had specifically mentioned that Huzoor Bakhsh and Atta Hussain were armed with Kassi and had inflicted injury on the arm and head of the deceased. There is no evidence to show whether the injuries were inflicted from the. Sharp side or the blunt side of the Kassi. However, the medical evidence supports to the extent that two injuries were inflicted on the head of the deceased. One of which was from the sharp side and the other was a lacerated wound 2" x 1/4" bone deep on the front middle of the head running obliquely near head. The doctor in his evidence has stated that death was caused due to supplementary effect of injuries Nos.1 and 2 on the head which was also supplemented by injury No,5 on the abdomen. Injury No,1 was grievous and dangerous to life, injury No,2 was simple, injury No,5 was also grievous and dangerous to life.
9. There was no cross-examination to this witness. Considering this aspect of the case that it was not possible to say with certainty as to which of the two appellants had caused fatal injury, the sentence was altered from death to imprisonment for life. There is nothing in the evidence to contradict or falsify that two injuries had not been caused by the Kassi. If the entire observation of the High Court quoted above is read with reference to the context it is clear that the contradiction sought to be pressed by the learned counsel for the appellant does not exist. The appeal is, therefore, dismissed. The appellant shall be entitled to benefits of section 382-B, Cr.P.C. As admissible under law.