1. WAHIDUDDIN AHMAD, J.--Appellants Muhammad Nawaz, Chiragh and Bagh were convicted under sections 302/34 and 325/34, P. P. C. For the murder of Hussain deceased and for causing grievous hurt to his son Nazir, by the Additional Sessions Judge, Sahiwal, by judgment dated the 13th December 1966. They have been sentenced to death and have been further sentenced to two years' rigorous imprisonment each and a fine of Rs. 100 or in default one month's rigorous impri-- sonment. Their appeals were dismissed and death sentences were confirmed by a Division Bench of the West Pakistan High Court, Lahore, by judgment dated the 23rd December 1967.
2. The prosecution case is that Hussain deceased, his three brothers, Nur Jamal, Hassan and Mahla and his sister, Mst. Sardaran were allotted 17ff' acres of land in village Amli Moti. The land was under the possession of Chiragh, Bagh and Khurshid sons of Mahla. Hussain deceased and Nazir P. W.
3. Used to reside in Chak No. 251/EB. About three months before the occurrence, Nazir P. W., started living at Chah Dharkhanwala and demanded his father's share measuring 4 acres and 3 kanals in the said land. Chiragh and Bagh appellants, who are nephews of deceased Hussain, delivered the possession of 4 acres of land but did not give the possession of the disputed 3 kanals of land.
4. About a month before the occurrence, there was fight between Chiragh appellant and Nazir P. W., over this piece of land. Hussain deceased also shifted from Chak No. 251/EB to Chah Dharkhanwala.
5. He also demanded the- possession of 3 kanals of this disputed land. A day or two before the occurrence, Hussain deceased demanded the possession of 3 kanals from Chiragh but he refused to do so and there were exchange of abuses between them. It appears that on the 1st of August 1965, deceased Hussain, his son Nazir P. W. And Rehmat Ali P. W. Along with his sister's son Asghar Ali P. W. Were ploughing the land of the said Asghar Ali. Shortly after sunrise, Chiragh, Bagh and Muhammad Nawaz appellants and Khurshid who was also challaned but died during the pendency of the case came to the field of Asghar Ali. Chiragh had a gun, Muhammad Nawaz had a pistol, and Bagh and Khurshid had dangs. They stopped the ploughing and asked Kharls to separate from Dhodis. Thereupon, Asgbar Ali and Rehmat Ali who were Dhodis went to the north and deceased Hussain and Nazir P. W., who were Kharls stood on the south. Chiragh appellant fired the first shot with his gun at Hussain deceased which hit him on the leg. Muhammad Nawaz appellant is alleged to have fired with his ' 12 bore pistol which also hit the deceased on the leg.
6. When deceased Hussain was about to fell down, Bagh appellant gave a dang blow on his head.
7. Nazir wanted to rescue his father but Bagh and Khurshid deceased gave him blows with dangs and injured him. The prosecution case is that the occurrence was witnessed by P. Ws. Asghar Ali, Rehmat Ali and Allah Ditta.
8. The F. I. R. Was lodged by P. W. 10 Allah Ditta at 8-00 a. m. With Ghulam Ali, Head Constable, who met him on the way to the police station near Bridge Mirzapur. His statement (Exh. PR) recorded by Ghulam Ali was sent to the police station for registration of the case and the formal F. I. R. Was recorded at the police station at 8-30 a. m. After recording the statement of Allah Ditta, Ghulam Ali Head Constable reached the spot. He found Hussain deceased alive on the scene of occurrence.
9. The deceased was in his senses and he recorded his statement (Exh. PZ) under section 161, Cr. P. C.
10. The Head Constable sent Hussain deceased and Nazir for medical examination. S. H. O. Abdul Hamid took the investigation of the case at 11-00 a.m. Hussain deceased died at 2-40 p.m. In the Civil Hospital, Dipalpur. The post-mortem examination was performed by Dr. Ataullah Cheema P. W.
11. 1 who found injuries on the person of the deceased in the region of leg fired from oppo--site direction. He recovered 3 pellets from the body of the deceased which were produced before S. H.
12. O. And were taken into possession vide Memo. Exh. PE. Contused wounds were also found on his head but there was no injury to skull bone or to brain. Stomach was found empty. P. W. Nazir was also examined and as many as 11 injuries were found on his body by blunt weapons. Chiragh appellant was arrested on the same day at 4-00 p. m. He produced a gun. Muhammad Nawaz appellant also appeared and produced .12 bore pistol (Exh. P, 9) and two cartridges (Exhs. P. 10/1 and P. 10/2), Bagh and Khurshid also appeared and produced dangs (Exh. P. 4 and Exh. P. 5) respectively vide Memos. Exh. PG and Exh. PH. They were arrested and later on challaned and committed for trial to the Sessions Court.
13. The learned Additional Sessions Judge, Sahiwal, by judg--ment dated the 13th December 1966, found the appellants guilty under sections 302/34 and 325/34, P. P. C. And sentenced them to death and imprisonment as stated above. The learned Sessions Judge has based the conviction of the appel--lants on the oral testimony of P. W. 10 Allah Ditta, P. W. 11 Nazir and P. Ws. Asghar Ali and Rehmat Ali. He has further relied on the dying declaration of the deceased which was recorded by the Head Constable Ghulam Ali. It was suggested before the learned Sessions Judge that the occur--occurrence did not take place in the field of Asghar Ali but near the kotha of P. W. Nazir. But this suggestion was repelled by the learned Sessions Judge on the ground that there was sufficient reliable evidence to show that the deceased, along with P. W. Nazir was ploughing the land of Asghar Ali in the company of P. Ws. Asghar Ali and Rehmat Ali. The evidence of P. W. Sirajuddin and P. W. Ibrahim who had no ill-will against the appellants proved that the deceased and P. W. Nazir were found injured on the secene of occur--occurrence. Blood-stained earth was also collected from there in their presence. The learned Sessions Judge further found that the recoveries in the present case have no corroborative value as the pellets recovered from the dead body of the deceased did not match with the gun and pistol recovered from Muhammad Nawaz and Chiragh appellants nor the dangs produced by Bagh and Khurshid were found to be blood--stained. These recoveries, therefore, were excluded from consideration. The learned Court held that the motive which led to the occurrence in dispute was sufficiently established. He found it as a fact that there was a dispute between the parties can 3 kanals of land. After considering the evidence he came to the conclusion that 171 acres of land situated in Chah Dharkhanwala in the area of Amli Moti was allotted to Hussain deceased, his three brothers and his sister Mst. Sardaran, mother of Allah Ditta.
14. The share of Mst. Sardaran was not given to her and her share remained under the possession of her brothers. The Khatta being joint, Hussain deceased, Mahla, father of Chiragh, Bagh and Khurshid, Hassan and Nur Jamal had four equal shares and in this way each of them was entitled to four acres and 3 kanals. Chiragh, Bagh and Khurshid who were in possession of the joint land, only parted with four acres of land and there was dispute between the parties about the remaining 3 kanals of land. On this evidence the learned Sessions Judge convicted the appellant. Their sentence was also confirmed by the High Court as stated above. The appellants have challenged the judgment of the High Court in this appeal by special leave.
15. Mr. Mahmood Ali Qasuri, the learned counsel for the appellants, has contended that the occurrence took place in darkness near the kotha of Nazir P. W. Much before the time stated by the prosecution and that none of the appel--lants participated in the crime. The contention of the learned counsel has not impressed us because the statements of the eye-witnesses that the occurrence took place shortly after sun--rise in the field of Asghar Ali P. W., find support from dis--interested witnesses Sirajuddin and Ibrahim P. Ws. They stated that they joined the investigation of the police in the morning and blood-stained earth was collected in their presence from the field of Asghar Ali, where deceased Hussain and P. W. Nazir were injured. These witnesses are not on inimical terms with the appellants. The learned Additional Sessions Judge on this evidence was perfectly justified in holding that the occurrence had taken place shortly after sunrise in the field of Asghar Ali P. W.
16. This contention is, therefore, repelled.
17. Mr. Qasuri further contended that no reliance should be placed on the evidence of the eye- witnesses as they are related to each other and are on inimical terms with the appellants. In this connection the learned counsel referred us to the evidence of P. W. Allah Ditta in which he admitted that litigation was going on between Muhammad Nawaz and his family in respect of the land left by Ghulam Muhammad, brother of Zabta, which was in possession of Muhammad Din, his father and' that Chiragh accused was an informer and witness in the smuggling case against his father.
18. He also referred us to the admission of Rehmat Ali P. W. That Chiragh accused was sentenced to nine months' imprisonment for causing injury to Asghar Ali P. W. Who was his sister's son. It was further contended that P. Ws. Asghar Ali and Rehmat Ali are closely related to Allah Ditta and therefore their evidence should not be accepted against the appellants. In the same way it was urged that the evidence of P. W. Nazir should not also be accepted for the conviction of the appellants. We, have gone through the evidence of the eye-witnesses and are satis--fied that the learned Courts below were perfectly justified in placing reliance on the evidence of these witnesses. The presence of P. W. Allah Ditta near the scene of occurrence was natural because his fields are near the fields of Asghar Ali and on that morning he was on a round to see his cotton crop. The incident took place in the field of Asghar Ali. His presence, therefore, was also natural on the scene of occurrence. P. W. Rehmat Ali was also assisting his sister's son Asghar Ali in ploughing his field. It cannot, therefore, be said that his presence was un-natural on the scene of occurrence.
19. The statements of these witnesses satisfactorily prove that deceased Hussain and P. W. Nazir was also helping in plough--ing field of Asghar Ali. Therefore, their presence was also natural on the scene of occurrence. The statement of P. W. Nazir being of an injured person is very important. His statement was recorded sometime after the occurrence by the Head Constable on the scene of occurrence. He supported the prosecution version in detail and there is no ground to dis--believe him so far as the case against Bagh, Chiragh and Khurshid deceased is concerned. His statement about the time when the injuries were caused is supported by the medical evidence. His statement is quite convincing. On the evidence of these witnesses we have, no doubt, in our mind that appellants Chiragh and Bagh participated in the crime and they were responsible in causing injuries to deceased Hussain. Their conviction is, therefore, based on reliable evidence and no exception can be taken to it.
20. The learned Additional Sessions Judge and the High Court has also relied on the dying declaration of deceased Hussain (Exh. PZ). This piece of evidence was not relied upon by the prosecution but was discovered by the trial Court during the hearing of the case. In our opinion, the learned trial Court should have left the conduct of the case to the prosecution agency and should not have hunted out evidence against the appellants. In these circumstances we consider it unsafe to rely on this piece of evidence. We have, therefore, excluded it from consideration.
21. Mr. Mahmood Ali Qasuri has contended that the case of Muhammad Nawaz stands on a different footing. According to the learned counsel he had no enmity with the deceased. He is not related to the other appellants. He has no interest in the land in dispute which led to the occurrence. The learned counsel contended that there is ample evidence on the record to show that P. W. Allah Ditta is on inimical terms with him. It was urged that he had been deprived to inherit the property of Ghulam Muhammad on the pretext that his father Zabta pre-deceased him. In this connection the learned counsel referred us to Exh. DF, the order passed in appeal filed by Muhammad Nawaz against the heirs of Ghulam Muhammad. Mr. Qasuri even went to the extent of contending that P.
22. W. Allah Ditta wanted to get rid of Muhammad Nawaz so that his property may be inherited by his father.
23. On these premises the learned counsel contended that the evidence of the eye-witnesses being of interested persons should have been corroborated by some independent evidence for establishing that Muhammad Nawaz was present on the scene of occurrence. The argument of the learned counsel has received our anxious consideration. It cannot be denied that relations between the family of Muhammad Nawaz and P. W. Allah Ditta are not cordial. There is evidence on the record to establish that the two families are on inimical terms with each other and that litigation is going on between them about the land left by Ghulam Muhammad, brother of Zabta which is in possession of Muhammad Din, father of P. W. Allah Ditta. This dispute was also admitted by Allah Ditta in his cross-examination. It is also in evidence that Asghar Ali and Rehmat Ali P. Ws. Are related to P. W.
24. Allah Ditta. Asghar Ali is the sister's son of Rehmat Ali. Rehmat Ali's sister's daughter is married with P. W. Allah Ditta. In view of this relationship it is possible that they may be under the influ--ence of P.
25. W. Allah Ditta. The argument that P. W. Alla Ditta wanted to get rid of Muhammad Nawaz is far- fetched but in view of the enmity between Allah Ditta's family and Muhammad Nawaz the possibility that Muhammad Nawaz has been falsely implicated for the murder of deceased Hussain cannot be ruled out. Malik Abdul Hamid, the learned counsel for the State has also conceded that on the evidence on record the possibility of false implication of Muhammad Nawaz cannot be ruled out. We would, therefore, give him benefit of doubt.
26. We have also found much force in the contention of Mr. Qasuri that Bagh appellant deserves a lesser sentence than the one that has been imposed on him. The evidence shows that Bagh appellant has given only a dang blow on the head on the deceased causing simple injuries. He is the younger brother of Chiragh. It is possible that he might have acted under the influence of his elder brother. In our opinion the end of justice will be sufficiently met if he is given a less sentence under section 302/34, P. P. C. We would, therefore, alter his death sentence to transportation for life.