' ABDUL SHAKURUL SALAM, J.---This appeal by leave arises in the following circumstances: ' Muhammad Hayat (P.W.2) lodged F.I.R. Exh. PD at 12-10 a.m. On 12-7-1984 at Police Station Lalamusa recorded by Tahir Mahmood, Inspector/S.H.O (P.W.12). It is to the effect that he started from his house at 5/6 p.m. For his Dera. When he reached in the street in front of the house of one Muhammad Riaz, he saw his son Muhammad Asghar (deceased) and Mushtaq Ahmad P.W.
Coming from the opposite direction. When both of them reached near the house of Zakawat Hussain, from the Deohri thereof Manzur Hussain, Nazar Hussain sons of Fazal, Farnaz Iqbal son of Manzoor empty handed, Zakavvat Hussain, son of Fazal, Muhammad Zarif, son of Rehmat Khan with Dandas, Adalat son of Nazar Hussain with an hatchet and Sabir, son of Fateh Din with .12 bore gun who were sitting therein in concert emerged to attack his son Muhammad Asghar. Manzur Hussain, Nazar Hussain and Farnaz caught hold of his son Muhammad Asghar and started dragging him inside the Deohri. His (complainant's) companion moved forward to save his son. Zarif and Zakawat started injuring him with Dandas. When he himself moved raising noise, he too was given a Danda blow on the right side of the buttock by Manzur. He was also given a fist blow and thrown out. On his, Mushtaq Ahmad and his son Muhammad Asghar's noise, Mst. Willayat Begum wife of his son Muhammad Asghar, Muhammad Riaz his son-in-law and Karim Dad, son of Lal Khan came out running from their houses and reached the spot. They moved forward to save Muhammad Asghar, Sabir gave a blow with the butt of the gun on the back of Muhammad Asghar. Manzur, Nazar, Farnaz pulling and Zakawat Hussain and Muhammad Zareef giving blows with their Dandas, dragged (Mohammad Asghar) in the Deohri. Sabir Hussain stood at the door of the Deohri pointing the gun towards them, raising Lalkara that if anybody tried to come forward to save, he will be fired at him. Out of fear they stood in the street in front of the Deohri raising the cry for help. His son Muhammad Asghar was taken inside and fell. Manzoor Hussain, Nazar Hussain and Farnaz Iqbal picked up bricks lying nearby and started hitting his son on the head, and face. Zakawat Hussain and Muhammad Zareef continued injuring with Dandas. Adalat Khan also inflicted an injury with his hatchet which hit under the chin of his son. Zakawat Hussain and Muhammad Zareef pressed the Danda on the neck of Muhammad Asghar. Meanwhile many persons collected in the street. Manzur Hussain accused etc. After injuring his son Muhammad Asghar came out in the street and ran away, whereupon he and his companions reached near his son. He had died of the injuries. This was witnessed besides him by Mst. Willayat Begum, Muhammad Riaz, Mushtaq Ahmad and Karim Dad mentioned above. The motive for the occurrence is that his son Muhammad Asghar was intending to contest election against Manzur Hussain. Earlier Manzur Hussain had been elected.
Later on his son Muhammad Asghar was elected as member and then Chairman. Because of this enmity Manzur Hussain aforementioned had earlier twice or thrice abused Muhammad Asghar but the matter used to be patched up. Now Manzur Hussain etc. In concert had butchered his son Muhammad Asghar.
2. The accused were arrested on 15-7-1984. Recoveries were effected on 28-7-1984 but these are of no value as these have not been believed by the learned High Court.
3. At the trial Muhammad Hayat, Mushtaq Ahmad and Karim Dad appeared as P.W.2, P.W.3 and P.W.4 respectively furnishing ocular account of the occurrence. Dr. Muhammad Ali Malik, who performed autopsy at 12-00 noon on 12-7-1984 appeared as P.W.11. He noted the following injuries:- - "(1) A lacerted wound 5 c.m. x 5 c.m. Centre of forehead. There was compound fracture of frontal bone.
(2) Lacerated wound 2 c.m. x .5 c.m. x bone deep above and outer to left eye.
(3) Lacerated wound 1 c.m. x 1 c.m. Outer of left eye.
(4) Lacerated wound 2 c.m. x .5 c.m. x bone deep back of head behind left ear.
(5) Lacerated wound 2 c.m. x .5 c.m. x bone deep back of head, behind left ear, approximately 2 c.m. Below injury No,4.
(6) Lacerated wound 2 c.m. x .5 c.m. x bone deep above right eye-brow.
(7) Lacerated wound 3 c.m. x .5 c.m. x bone deep outer of right eye, bone under which was fractured.
(8) Lacerated wound 4 c.m. x .5 c.m. x bone deep back of head right side.
(9) Lacerated wound 3 c.m. x .5 c.m. x bone deep back of head right side.
(10) Incised wound 4 c.m. x 1 c.m. x bone deep below chin, mostly on left side.
(11) Contusion 8 c.m. x 2 c.m. Across back of chest.
(12) Lacerated wound 2 c.m. x .5 c.m bone deep back of right wrist. There was fracture of right ulna bone under this wound.
(13)Multiple small abrasion back of right hand.
(14)Contusion 3 c.m. x 2 c.m. Back of right wrist.
(15)Contusion 10 c.m. x 2 c.m. Front of left chest above nipple.
(16)Multiple small abrasion back of all the fingers of left hand, compound fracture of middle phylanx of left middle finger.
(17)Contusion 7 c.m. x 2 c.m. Front of neck over thyroid prominance.
(18)Abraded contusion on the scro tum, both testicles were crushed and were not identified separately. They were made into a soft crushed mass.
(19)Multiple small abrasion covering an area of 10 c.m. x 3 c.m. Front of right leg.
(20)Lacerated wound 2 c.m. x 1 c.m. Below right knee.
(21)Multiple small abrasion covering whole front of left knee.
(22)Contusion 8 c.m. x 2 c.m. Front of chest right side lower portion.
(23)Lacerated wound 1.75 c.m. x .5 c.m. At the tragus of left ear.
' He noted congestion under injuries 1 and 7 to the brain, thyroid cartilage and tracheal rings were found fractured. The injuries were opined to be anti-mortem. All the injuries except injury No,10, were opined to have been caused by blunt weapon. Injury No,10 was opined to have been caused by sharp-edged weapon.
' Death was opined to have occurred due to shock and haemorrhage, resulting from all injuries.
Injuries 1, 7, 17 and 18 were opined to be sufficient to cause death collectively as well as individually.
Injuries 1, 7, 12, 16, 17 and 18 were declared grievous while the rest were declared simple. Probable time between injuries and death was opined to be immediate while time between death and post- mortem was opined to be about 18 hours.
' During cross-examination, he stated that injuries 2 and 3 could have resulted from one blow and so could be the case about injuries 4 and 5. In answer to another question, he stated that injury No,12 as well as contusions and abrasions could have been caused by fall on some hard substance. He also stated that contusion and abrasion on non-vital part of the body could be self- suffered.
' Dr. G.A. Salim appeared as P.W.10 who had medically examined Muhammad Hayat P.W.2 and Mushtaq Ahmad P.W.3. He noted complains of pain rin the right buttock and complains of pain in the back (waist) of Muhammad Hayat. Both the injuries were opined by him to be simple caused with blunt weapon.
' Mushtaq Ahmad was found to have suffered a contusion mark 8 c.m. x 4 c.m., in front of chest in the middle, an abraded contusion 10 x 3 c.m. On the left forearm, an abrasion 1 c.m. x 1 c.m. At the back of left thumb on the palmer aspect, complain of pain on the right hand, an abraded contusion 8 x 5 c.m. On the right shin, swelling 10 x 8 c.m. On the right knee, complains of pain in the left thigh, complains of pain in the left knee, complains of pain in the back swelling with contusion, 15 x 3 c.m. On the right shoulder and swellings about five in number 5 x 4 c.m. On the top of head.
' All the injuries were declared simple and of having resulted from blunt weapon. The duration of injuries on both the P.Ws. Was opined to be 16 to 18 hours.
' During cross-examination, he stated that he had not seen signs of visible marks on Muhammad Hayat P.W. About injuries 4, 7, 8 and 9 on the person of Mushtaq Ahmad, he stated that they were noted on the complaint of P.W. But he had not seen visible marks. In answer to another question, he stated that simple injuries on the person of Mushtaq Ahmad could be suffered at friendly hands.
4. The accused namely Manzur Hussain, Nazar Hussain, Zakawat Hussain real brothers, their brother-in-law Sabir and their collaterals Adalat Khan, son of Nazar Hussain, Farnaz Iqbal, son of Manzoor Hussain and Muhammad Zareef, son of Rehmat Khan denied the allegations against them.
' Zakawat Hussain stated that he had gone to another village Sagar where his brother-in-law had died. He had said so before the Investigating Officer who accepted the same and observed in his case diary as well as in the report under section 173, Cr.P.C. That he was innocent.
' Nazar Hussain made the following statement:-- "Mst. Taj Begum is my sister. She has been deserted by her husband. Her husband has remarried.
She lives with Zakawat accused in his house. Zakawat accused is my brother and lives near my house. Zakawat deals in cattle and keeps his buffaloes in his house. Bashir Begum is his wife. Shah Begum is sister of Bashir Begum and she is widow of Walayat Khan, son of Alam Din, resident of village Sagar. Walayat Khan, her husband used to reside in Karachi where he died on 5-7-1984. The dead body of Walayat Khan was brought in village Sagar and was buried on 9-7-1984. My brother Zakawat alongwith his family had gone to village Sagar in connection with the death of Walayat Khan. Qul ceremony of Walayat Khan was performed on 11-7-1984, according to the custom of the Ilaqa. Zakawat accused left Mst. Taj Begum in his house and had told me to look after his cattle while going to Sagar. On 11-7-1984, at Aisha prayer time, I went to the house of Zakawat and saw Asghar deceased in objectional condition with Mst. Taj Begum in the Deohri of the house of Zakawat. I lost self-control and due to grave and sudden provocation started, giving injuries to Muhammad Asghar deceased with bricks etc. In the meantime Mst. Taj Begum ran away and was then saved. I gave injuries to Muhammad Asghar, who had fallen there, on all parts of his body and also on his private parts. I locked the house from inside and told the people collected outside to bring the police so that the complainant party do not change the place of occurrence. A large number of people had collected outisde, who had sympathy with both the parties and there was a row outside. I remained in the house till the arrival of the police and told them what had happened when the police arrived. I have been falsely implicated in this case and the facts have been twisted to make out a murder case against me. My co-accused were not present at the time of occurrence. The occurrence was not witnessed by anybody."
' He also produced in defence, death certificate of Willayat Khan, his brother-in- law (Humzulf).
5. The learned trial Court vide order dated 21-1-1987 found the accused/appellants guilty under section 302/149, P.P.C. And sentenced each of them to death plus a fine of Rs, 10,000 each, in default of payment of fine to undergo R.I. For one year each. They were also convicted under section 148/149, P.P.C. And sentenced to R.I. For three years each. They were acquitted under section 323/149, P.P.C. Convicts' appeal was dismissed by a learned Division Bench of the Lahore High Court but reduced the sentences of death to imprisonment for life. Sentences were ordered to run concurrently and the convicts were also given benefit of section 382-B, Cr.P.C. This is vide order dated 10-10-1989.
6. The convicts were granted leave to appeal vide order dated 13-5-1990.
7. After taking us through the evidence on the record the learned counsel for the appellants contended that the FIR was lodged after inordinate delay; that all the male members of the appellants excepting those who were abroad have falsely been involved in this case; that the story that the appellants were sitting in the Deohri of Zakawat Hussain in concert to attack the deceased is belied by the facts that there was no way of knowing, by the appellants that the deceased was to pass in front of their house and according to the prosecution case itself three of the seven accused were empty handed. He also submitted that not only the eye-witnesses were inimical and related to the deceased, the complainant Muhammad Hayat being the father and the other two collaterals, their presence at the spot at best would be that of chance witnesses and there is no corroborative evidence connecting the accused with to crime. It was next submitted that blood was recovered from inside of the house of Zakawat Hussain appellant No,3 which will show that the plea taken by Nazar Hussain that he saw the deceased in objectionable condition with Mst. Taj Begum and inflicted injuries with bricks lying there was correct. He acted under grave and sudden provocation.
8. Learned counsel for the State could not controvert the contentions and stated that the plea in defence may be probable.
9. After hearing the learned counsel for the parties and perusing the relevant evidence on record with their assistance, we find that the eyewitnesses' account is not confidence inspiring. The antecedents and character of the star witness Muhammad Hayat the complainant is not such that implicit reliance may be placed on his testimony. Muhammad Hayat had no visible injury on his person while the injuries found on Mushtaq are not of a nature that his presence at the time of occurrence cannot be doubted. The falsity of the prosecution case is apparent from the fact that all the male members of the A family of the appellants, who were not abroad, have been roped in.
Zakawat Hussain had said that he had gone to another village in connection with the death of his brother-in-law. According to the Investigating Officer, from open and secret investigation it was found that the accused Zakawat Hussain was not present at the time of occurrence. In the report under section 173, Cr.P.C. It was stated that the allegations against the accused Zakawat were doubtful. The number of injuries on the deceased may have been caused by more than one person but there is no way of knowing who the other or others were. Therefore, excepting Nazar Hussain who had admitted causing injuries under grave and sudden provocation, others are given benefit of doubt and acquitted. B Nazar Hussain, son of Fazal is convicted under section 304, P.P.C. And sentenced to ten years' R.I. Sentence of fine is maintained. He is acquitted of the other charges. He shall be given the benefit of section 382-B, Cr.P.C. Manzoor Hussain, Zakawat Hussain, Adalat Khan, Muhammad Zareef, Farnaz Iqbal and Sabir appellants shall be released forth with if not required in any other case.