' JAVID IQBAL, J.-Gulzar son of Ahmad, aged 30 years (has died during the pendency of this appeal), Ahmad Ali son of Sardara, aged 40 years, Mira son of Shahabal, aged 38 years, Amin son of Nur Muhammad, aged 30 years, and Nur Ahmad son of Thiraj, aged 40 years, were tried under sections 148, 302/149, P. P. C. For the murder of Khadim Hussain and under section 323/149, P. P. C.
For causing simple injury to Muhammad Yar P. W. 9 and vide judgment dated the 14th of July 1971, of the Additional Sessions Judge, Sahiwal, Gulzar (since deceased) and Ahmad Ali were sentenced to death whereas Mira, Amin and Nur Ahmad were sentenced to transportation for life under section 302/149, P. P. C. And a fine of Rs, 500 each or in default to undergo further six months' R. I. All of them were sentenced to three years' R. I. Under section 148, P. P. C. And one year's R. I. Under section 323/149, P. P. C. In the case of Gulzar (since deceased) and Ahmad Ali the sentence of imprisonment was to become operative if the death sentence was not confirmed and in the case of the others the sentences were ordered to run concurrently. This appeal as well as reference for the confirmation of death sentence awarded to Gulzar (since deceased) and Ahmad Ali, are being taken up and disposed of together by this judgment.
2. The occurrence took place on the 18th of June 1968, at degerwela in the area of Chak No, 67-A, at a distance of 13 miles in the direction of North-East from Police Station Renala Khurd, District Sahiwal. The former F. I. R. (Exh. P. A./1) was registered on the basis of the statement of Kamir P. W. 8 (Exh. P. A. Recorded by Muhammad Sultan A. S.
1. P. W. 12 at the Civil Hospital, Okara on the 19th of June 1968, at 9-30 a.m. The formal F. I. R. Was registered at 10-30 a.m. On the same day at Police Station, Renala Khurd by Riaz Ahmad, A. S. I. (P.
W. 19).
3. The motive for offence as stated in the F. I. R. Is that one day prior to the occurrence Khadim Hussain along with his relatives Yusuf and Zulfiqar P. Ws. 6 and 7 went to take bath on the well of the village mosque at about 10/11.00 a.m. At that time Mst. Raiban, sister-in-law of Amin appellant came to the well in order to draw water. Zulfigar P. W. Told her that she should draw water after they had taken the bath as they had come earlier. Upon this she became annoyed and abusing them left for her house. She then instigated her relatives to avenge the insult. Thereupon, Mira appellant and Gulzar (since deceased) came to the well and abused Khadim Hussain etc. But on the intervention of Nausher and Siddique (given up as having been won over), the matter was settled.
4. The occurrence is reported to have taken place in the following manner: Kamir P. W. Was present outside his house. In the meantime he saw Muhammad Yar P. W. Leading his horse and being followed by Khadim Hussain returning to their house from the fields. At the same time the appellants armed with dangs and lathis appeared. Ahmad Ali appellant gave a dang blow to Khadim Hussain on the left side of his head and Gulzar (since deceased) gave a dang blow to him which fell on his left hand. Then Nur Ahmad appellant gave a dang blow which struck on the palm of the left hand of Khadim Hussain. Mira and Amin appellants also gave blows to him. Muhammad Yar P. W. Received a lathi blow on the right side of his head. Because of the noise Siddique (given up as having been won over), Abdullah P. W. 10 and Amira (given up as having been won over) were attracted to the scene and witnessed the occurrence. The appellapts after inflicting injuries ran away. It is stated in the F. I. R. By Kamir P. W. That on the following day Khadim Hussain along with Muhammad Yar P. W. Were brought to the Civil Hospital, Okara, in an injured condition. Khadim Hussain died thereafter in the hospital.
5 According to the prosecution all the appellants were arrested on the 21st of June 1968. The following recoveries were made at their instance on the same day. Blood-stained dang P. 1, taken into possession vide memo. Exh. P. D. From Gulzar (since deceased), blood-stained dang P. 2, taken into possession vide memo. Exh. P. E. From Ahmad All appellant, clang P. 3 (not blood-stained), taken into possession vide memo. Exh. P. F. From Nur Ahmad appellant, dang P. 4 (not blood- stained), taken into possession vide memo. Exh. P. G. From Amin appellant; and dams P. 5 (not blood-stained), taken into possession vide memo. Exh. P. H. From Mira appellant. The attesting witnesses of these recoveries apart from Karim Bux A. S. I. P. W. 18 are Muhammad Amin (given up as having been won over) and Muhammad Ali P. W.
17. Dangs P. 3, P. 4 and P. 5 recovered at the instance of Nur Ahmad, Amin and Mira appellants were not blood-stained and, therefore, they are of no help. Dangs P. 1 and P. 2, recovered at the instance of Gulzar (since deceased) and Ahmad All appellant were blood-stained and according to the report of the Serologist (Exh. P. V.) the scrapings therefrom were found to be stained with human blood.
6. Dr. Muhammad Afzal P. W. 2 medically examined Khadim Hussain at 7-15 a.m. On the 19th of June 1968, while he was still alive. He found the following injuries on his person: (1) a contused wound on the left side of head, (2) a contused wound on the left side of forehead, (3) right eye (upper and lower lid) contused, (4) a lacerated wound on the left hand between the thumb and the index fingers; and (5) a contusion mark on the middle of the back. The injured was unconscious. All the injuries were caused by blunt weapon within a duration of 24 hours. The condition of the injured was serious. He died at 10-05 a.m. On the same day. The doctor stated in his cross-examination that injury No, (3) was the result of injury No, (2) on the person of Khadim Hussain deceased. This would indicate that the number of injuries actually sustained by him was four instead of five.
' Dr. Muhammad Asghar P. W. 1 conducted the post-mortem examination on the dead body of Khadim Hussain at 1-05 p.m. On the same day and found the same injuries on his person. The skull was fractured under injuries Nos. (1) and (2). The fracture was a depressed fracture of frontal bone which extended to the case of the nose. In his opinion the death was due to shock caused by brain haemorrhage and compression of brain. Injuries Nos. (1) and (2) were sufficient to cause death in the ordinary course of nature.
' Dr. Muhammad Afzal P. W. Medically examined Muhammad Yar P. W. At 9-20 a.m. On the same day and found a contused wound on his person on the right side of head. The injury had been caused by a blunt weapon. It was subsequently declared simple.
7. The prosecution has produced three eye-witnesses of the occurrence, namely, Kamir P. W., uncle and father-in-law of Khadim Hussain deceased, Muhammad Yar P. W. (injured) cousin of Khadim Hussain deceased and nephew of Kamir P. W. And Abdullah Khan P. W. Brother-in-law of Khadim Hussain deceased. Two other witnesses, namely Siddique and Amira cited as eye-witnesses were given up by the prosecution as having been won over. It may be pointed out that all the three eye- witnesses produced did not support the case of the prosecution at the trial, they were declared hostile and were cross-examined by the Public Prosecutor but only the statements of Muhammad Yar and Abdullah Khan P. Ws. Were transferred to the Sessions file under section 288, Cr. P. C.
8. Gulzar (since deceased), Ahmad Ali, Mira and Nur Ahmad appellants totally denied having participated in the occurrence and disowned the dangs. They stated before the trial Court that they were not present at the time of occurrence and had been falsely implicated in this case on account of enmity. Amin appellant disowned dang P. 4 and stated that the horse of Muhammad Yar P. W. Trespassed into his charri crop growing in Killa No, 12 of Square No, 34 and damaged the same. He caught the horse and proceeded to get it impounded but Khadim Hussain deceased and Muhammad Yar P. W. Attacked him and tried to snatch away the horse forcibly. Khadim Hussain aimed a dang blow and tried to hit him but he rescued himself and in self-defence of person and property gave injuries to Khadim Hussain. Muhammad Yar P. W. Also attacked him and in self- defence he gave him only one injury. The other appellants were not present there.
9. It may be noted that Yusuf and Zuffigar P. Ws., the motive witnesses, had stated in their cross- examination that when the matter had been compromised between Khadim Hussain and themselves on one side and Gulzar (since deceased) and Mira appellant on the other, they bore no towards them and became fully reconciled. This would indicate that the altercation on the well between the parties even if it had taken place did not constitute cause for the present occurrence.
' It has already been pointed out that all the three eye-witnesses Produced by the prosecution did not support the prosecution case at the trial. Anyway, their account of the injuries sustained by Khadim Hussain varies. Kamir P. W. Had stated in the F. I. R. That Ahmad Ali gave a dang blow which struck on the left side of head of Khadim Hussain and Gulzar (since We are of the view that the recoveries of dangs P. 3, P. 4 and P. 5 stated deceased) gave a dang blow which fell on the left hand of Khadim Hussain. He had further stated that Nur Ahmad appellant gave a dang blow which also struck Khadim Hussain on the left hand. Mira and Amin appellants are stated in the F. I. R. To have given blows to Khadim Hussain although there is no specification. Muhammad Yar P. W. Was given a blow on the right side of his head. However in the trial Court he stated that Ahmad Ali appellant and Guizar (since deceased) each of them gave a dang blow on the lead of Khadim Hussain whereas Nur Ahmad appellant gave him a dang blow on his hand and Mira and Amin appellants also inflicted dang blows to him and Amin appellant gave a gang blow on the head of Muhammad Yar P. W. Learned counsel for the appellants points out that if all the five appellants had given dang blows to Khadim Hussain then he would certainly have more than three injuries on his person. According to the medical evidence there were three injuries on the person of Khadim Hussain deceased. Thus, according to learned counsel Kamir P. W. Changed his statement in the trial Court in order to bring it in conformity with the medical evidence so far as the two head injuries were concerned. Muhammad Yar P. W. Before the Committing Magistrate had supported the F. I. R. Version given by Kamir P. W. Of the injuries sustained by them. But before the trial Court he stated that Mira and Amin appellants each inflicted dang blows on the head of Khadim Hussain whereas Ahmad Ali, Gulzar (since deceased) and Nur Ahmad appellant gave dang blows to him without specification. He stated that the injury received by him was inflicted by Ahmad Ali appellant. Abdullah P. W. Stated before the Committing Magistrate that Ahmad Ali appellant and Gulzar (since deceased) gave dang blows on the head of Khadim Hussain, Nur Ahmad appellant inflicted an injury on his band whereas Mira and Amin appellants gave blows to him without specification and Amin appellant inflicted one blow to Muhammad Yar P. W. However, in the trial Court he stated that the appellants inflicted 2/3 blows each to Khadim Hussain deceased. We have already mentioned that although these witnesses were closely related to Khadim Hussain deceased they did not support the prosecution version and were accordingly declared hostile.
' About the recoveries in this case learned counsel for the appellants points out that according to the P. Ws. Namely, Zulfiqar and Kamir the appellants were arrested one day after the occurrence i,e, the 19th of June 1968 whereas Karim Bux A. S, I. P. W. Had not stated as to on which date he had arrested them. However all the recovery memos. Were dated the 21st of June 1468. It is submitted that either the recovery memos. Were prepared two days later or the recoveries were made two days after the arrest of the appellants. It is further submitted that according to Abdullah P. W. Nur Ahmad appellant had given a dang blow on the hand of Khadim Hussain. This injury was a lacerated wound and blood must have come out. But dang P. 3 recovered at the instance of Nur Ahmad appellant was not blood-stained. It is argued that all the other injuries sustained by Khadim Hussain and one injury sustained by Muhammad Yar P. W. Were contused wounds in which case there would be no blood. Gulzar (since deceased) and Ahmad Ali appellant were stated to have given one dang blow each on the head of Khadim Hussain. Dangs P. 1 and P. 2 recovered from them, therefore, could have not been stained but nevertheless according to the prosecution they were. It is further submitted that one out of the two recovery witnesses, namely, Muhammad Amon was given up as having been won over whereas the statement of Muhammad Ali P. W. Made before the Committing Magistrate was transferred to the Sessions file under section 33 of the Evidence Act as the said witness was not available and his whereabouts were not known. This would leave only the Investigating Officer as witness of these recoveries to have been made from Nur Ahmad, Amin and Mira appellants are of no use as they were not blood-stained. Recoveries of clangs P. 1 and P. 2 which were found to be stained with human blood were stated to have been made from Gulzar (since deceased) and Ahmad Ali appellant. But they are stated to have caused only contused wounds. These dangs therefore, ought not to have been blood-stained. Kamir and Zulficiar P. Ws. Had indeed stated that the appellants were arrested on the 19th of June 1968, and the Investigating Officer did not specify the date on which he arrested the appellants. However, the recoveries are stated to have been made on the 21st of June 1968. This could mean that the recovery memos were prepared two days later and consequently the recoveries could have been tampered with. One attesting witness of these recoveries was given up as having been won over and the other was not available and, therefore, could not be produced. There is another aspect also which should be kept in view. According to the record the blood-stained recoveries were despatched to the Chemical Examiner almost after a month. The recoveries were made on the 21st of June 1968, but they were sent to the Chemical Examiner on the 17th of July 1968. The effect of this delay would render the recoveries valueless as laid down in Muhammad Ilyas and 5 others v. The State (1) and Muhammad Shafi and another v. The State (2). In the circumstances, we doubt if any reliance can be placed on these recoveries.
' The eye-witnesses in this case did not support the prosecution case at the trial, they were accordingly declared hostile and the statements of two of them made before the Committing Magistrate were transferred under section 288, Cr. P. C. To the Sessions file. In the circumstances, we are left with no other choice except to exercise our discretion with due care at the time of preferring one statement of these eye-witnesses as against the other.
' The defence version to the effect that the horse of Muhammad Yar P. W. Strayed into the charri field of Amin appellant and damaged the same whereupon Amin appellant caught the horse and proceeded to impound it and when Muhammad Yar P. W. And Khadim Hussain tried to snatch away the horse, he gave them dang blows in self-defence does find support to some extent in the statements of the P. Ws. Abbas Ali P. W. 5 who made the site-plan stated that when he visited the spot charri crop was standing in Killa No, 12 of Square No, 34 I e. The place of occurrence. He further stated that about 3/4 martas of the charri crop was trampled and grazed. There were hoofs of a horse all over Killa No 12. He had visited the spot on the day following the occurrence. There was no pathway or track (banna) in Killa No,
12. He had further stated that charri crop in Killa No, 12 was Sown by Amin appellant. He stated that he did not shove the charri crop in Killa No, 12 as trampled and eaten because the police had prohibited him to do so. Even in his statement before the Committing Magistrate he had mentioned the horse and the charri crop in Killa No, 12 belonging to Amin appellant but had stated that he did not indicate it in the site plan because he had forgotten to do so. Kamir P. W. Had stated that at the time of occurrence the horse of Muhammad Yar P. W.
Was also there in Killa No, 12 and that Muhammad Yar P. W. And Khadim Hussain deceased were passing through Killa No, 12 on their way to his dhari. He had also stated that the two legs of the horse were tied and it was grazing in Kin. No, 12 of Square No, 34 and that the occurrence took place on account of the damage to the crop by the horse. He stated that after the occurrence Amin appellant took away the-horse with him saying that he would get it impounded in the cattle pound.. {{FOOT NOTE}}
(1) PLD 1967 SC 443 (2) PLD 1968 Lah. 869 {{FOOT NOTE}} ' He further stated that Killa No, 12 of Square No, 34 had a charri crop which belonged to Amin appellant.
It is admitted even by the prosecution that the occurrence took place in Killa No, 12 of Square No, 34 which belonged to Amin appellant. If there was no pathway in the said killa then it can be said that Muhammad Yar P. W. Along with his horse and Khadim Hussain deceased had no right t pass through it. In that view of the matter the defence version which also finds support from the statements of the P. Ws. Is plausible. The eye witnesses in this case have changed their statements before the trial Court The statement made by two of them before the Committing Magistrate have been transferred to the Sessions file. We have carefully gone through their statement made before the Committing Magistrate as well as those made before the trial Court. It is laid down in Muhammad Ahmad alias Mahanda v. The State (1) and Wahid Bux v. The State (2) that in case the statements of witnesses made before the Committing Magistrate were to be made the basis for conviction their independent corroboration was necessary. In the present case we note that there is no corroboration of the statement made by the eye-witnesses before the Committing Magistrate. Therefore, we are inclined in the circumstances of the case to prefer and rely upon their statements made before the trial Court on the basis of the principle laid dow in Lal and others v.
The Crown (3).
10 We have already observed that the defence version is corroborate by the statements of the eye- witnesses made before the trial Court as well as the medical evidence. We are, therefore of the considered opinion that at the time of occurrence Amin appellant alone was present in his charri field in Killa No, 12 of Square No, 34, that Muhammad Yar P. W. Alongwith his horse and Khadim Hussain deceased passed through there, that the horse trespassed into the charri crop of Amin appellant and damaged the same, that he caught the horse and proceeded to get it impounded, that Khadim Hussain deceased and Muhammad Yar P. W. Tried to snatch away the horse forcibly from him and that Amin appellant in return inflicted injuries to both of them as a result of which Khadim Hussain died and Muhammad Yar P. W. Sustained one simple injury on his head. In our view the other appellants were not present at the time of occurrence. Consequently the convictions of Gulzar (since deceased), Ahmed Ali, Mira and Nur Ahma under sections 148, 302, 149, P. P. C. For causing the murder of Khadim Hussain and under section 323/149, P. P. C. For inflicting a simple injury to Muhammad Yar P. W. As well as the sentences awarded thereunder to them were not proper. Their convictions and sentences are accordingly set aside and they are acquitted. They shall be released from jail forthwith if not wanted in any other case. Their appeal is accepted, ' Amin appellant, however, had caused the death of Khadim Hussain and given a simple injury to Muhammad Yar P. W. And this resulted when the horse of Muhammad Yar P. W. Had strayed into the charri crop of Ami appellant and damaged the same. In the circumstances, it was not proper to convict him under sections 148, 302/149, P. P. C. And to sentence him to death for causing the death of Khadim Hussain. In our opinion, the case of Amin appellant was covered by section 304(11), P. P. C. On the basis of Wazir and 3 others v. The State (4). We accordingly set aside his conviction {{FOOT NOTE}}
(1) PLD 1970 SC 72 (2) 13 L D 1963 Kar. 837
(3) (1953) FC R 428 (4) 1970 P Cr. L J 1284 {{FOOT NOTE}} ' as well as sentences under sections 148 & 302/149, P. P. C. And instead convict him under section 304(11), P. P. C. He is sentenced to five years' R. I. Thereunder. We also convict him under section 323, P. P. C. For having caused a simple injury to Muhammad Yar P. W. And sentence him to one year's R.
I. The sentences shall run concurrently. His appeal is accepted to this extent.
11. Reference for the confirmation of death sentence awarded to Gulzar (since deceased) and Ahmad Ali appellant is rejected.