' ASIF SAEED KHAN KHOSA, J. Nisar Masih appellant was convicted by the learned Additional Sessions Judge, Chichawatni vide judgment dated 13-11-1996 for an offence under section 302(b), P.P.C. And was sentenced to Death and to pay a sum of Rs,50,000 by way of compensation under section 544-A, Cr.P.C. To the heirs of Sharif Masih or in default of payment thereof to undergo R.I. For one year. Through the same judgment Nisar Masih appellant's brothers Niamat Masih and Sansar Masih appellants were also convicted for an offence under section 302/34, P.P.C. And were sentenced to imprisonment for life each and to pay a sum of Rs,20,000 each by way of compensation under section 544-A, Cr.P.C. To the heirs of Sharif Masih or in default of payment thereof to undergo R.I. For six months each. All three of them were also convicted on three counts of an offence under section 324/34, P.P.C. And were sentenced of R.I. For seven years each on each count and to pay a fine of Rs,10,000 each on each count or in default of payment thereof to undergo further R.I. For six months each on each count. All the sentences of imprisonment were ordered to run concurrently and the benefit under section 382-B, Cr.P.C. Was extended to all the appellants. All the three convicts have challenged their convictions and sentences before this Court through Criminal Appeal No,359 of 1996. Ayub Masih complainant and the other two injured persons in this case have also filed Criminal Revision No,170 of 1996 before this Court seeking enhancement of sentences of Niamat Masih and Sansar Masih and also an order regarding payment of compensation by all the convicts on the three counts under section 324/34, P.P.C. We have heard the convicts' appeal and the complainant and others revision petition alongwith Murder Reference No,70 of 1997 seeking confirmation of the sentence of Death passed against Nisar Masih. We propose to decide all these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was that Ayub Masih complainant was a resident of Chak No,8/11-L, situated within the area of Police Station Ghaziabad, District Sahiwal. There was an outstanding dispute between the complainant's step-father Albert John and Parem Masih, father of the three appellant, over an Ihata. At about 9-00 a.m. On 17-2-1995 Sharif deceased, Albert John, Amrat Masih and the complainant were sitting with Niamat, Sansar and Nisar Masih appellants in the house of the complainant and were talking about the said Ihata. During those parleys Niamat Masih, etc. Asked the complainant party to go with them so that their share of the Ihata could be given to them after partitioning of the same. Upon that the complainant, Sharif deceased and Albert John proceeded towards the said Ihata with the appellants. When they reached in front of that Ihata all the three appellant hurriedly went inside their own house and emerged therefrom armed with various weapons. Niamat Masih and Sansar Masih appellants were armed with a dagger each and Nisar Masih appellant was carrying a knife. Immediately upon their emergence from their house the appellants launched an assault upon the complainant party. Niamat Masih appellant gave a dagger blow to Sharif deceased which landed at his right upper arm. Sansar Masih appellant gave a dagger blow to Sharif deceased which hit him below the back of his left shoulder. Niamat Masih appellant then gave two injuries to Albert John with his dagger on the latter's front and left side of chest. Nisar Masih appellant gave a knife blow to the complainant at his back. Thereafter, Sansar Masih appellant caused two injuries on the complainant's left hand.
Niamat Masih appellant then gave four dagger blows to Amrat Masih Which landed at his left arm, back and head. Nisar Masih appellant then gave a knife blow to Sharif deceased which landed at his chest. Sansar Masih appellant gave a dagger blow to the complainant causing an injury below the complainant's right eye. Sansar Masih appellant then caused two, injuries on Albert John's left elbow. Nisar Masih appellant thereafter, gave a knife blow to Sharif deceased which landed a little above his left flank. Upon receipt of that injury Sharif deceased ran towards the North of the place of occurrence but fell down after covering a short distance. The hue and cry raised by the complainant party attracted Shafqat and Afzal P,Ws. To the spot who also witnessed the occurrence and separated the parties. Thereafter, the appellants left the place of occurrence and went towards their own house. The complainant, Shafqat and Afzal P.Ws. Took Sharif, Amrat and Albert John to the local hospital on a tonga. Sharif succumbed to his injuries on the way. The complainant, Amrat and Albert John were medically treated at the hospital. The motive set up in the F.I.R. Was that Albert John used to demand his share of the joint Ihata but Niamat Masih and the other appellants were seriously aggrieved of that. According to the F.I.R it was on account of that grievance that the appellants had committed the murder of Sharif and had caused injuries to the complainant, Amrat and Albert John P.Ws.
3. Leaving the dead body of Sharif in the care of Shafqat and Afzal P.Ws. The complainant proceeded to report the matter to the local police. He went to Police Station Ghaziabad, District Sahiwal and lodged F.I.R. No,268 which was recorded by Muhammad Aslam, S.-I./S.H.O. (P.W.13) at 11-55 a.m. On the same day for offences under section 302/324/337-A(ii)/ 337-F(ii)/337-A(i)/34, P.P.C.
4. After recording the statement of the complainant Muhammad Aslam, S.-I./S.H.O. (P.W.13) took up the investigation of this. Case, proceeded to the hospital, prepared injury statement and inquest report qua the dead body of Sharif deceased and sent the dead body to mortuary for autopsy.
Then he proceeded to the place of occurrence, prepared a rough site-plan thereof, took into possession blood-stained earth and recorded the statements of witnesses.
5. Dr. Zamir Ahmad (P.W.1) medically examined Albert John P.W. At 10-00 a.m. On 17-12-1995 and found 4 injuries on his person caused by a sharp-edged weapon within a duration of 6 hours. The same doctor also medically examined Ayub Masih complainant on the same day and found 4 injuries on his person caused by a sharp-edged weapon within duration of 6 hours. The said doctor had also medically examined Amrat Masih P.W. On the same day and had found 4 injuries on his person caused by a sharp-edged weapon within a duration of 6 hours. On the same day the same doctor also conducted post-mortem examination of the dead body of Sharif Masih at 2-00 p.m. He had found 4 injuries on the dead body which were all antemortem and caused by a sharp-edged weapon. The cause of death was injury to vital organ, i,e, heart leading to syncope by injury No,2 which was sufficient to cause death in the ordinary course of nature. In the opinion of the doctor the death occurred immediately after receipt of injuries and the post-mortem examination was conducted within 12 hours of the death.
6. After the post-mortem examination of the dead body Muhammad Aslam, S.I./S.H.O. (P.W.13), the Investigating Officer, secured the last-worn clothes of the deceased. He then got a formal site plan of the place of occurrence prepared from a draftsman. Subsequently he arrested all the appellants and recovered blood-stained knife and daggers from their respective custody. Thereafter, he completed the other formalities, finalized his investigation and submitted a Challan in respect of this case.
7. At the commencement of the trial the learned trial Court framed a Charge with one head under section 302/34 and three heads under section 324/34, P.P.C. Against the appellants to which they pleaded not guilty and claimed a trial.
8. During the trial the prosecution produced as many as 13 witnesses in support of its case against the appellants. Ayub Masih complainant (P.W.10), Albert Masih (P.W.11) and Amrat Masih (P.W.12) furnished the ocular account of the incident and also stated about the motive. Dr. Zamir Ahmad (P.W.1) provided the medical evidence. Yousuf Masih (P.W.9) deposed about recoveries of weapons of offence affected from various appellants. Muhammad Aslam, S.-I./S.H.O. (P.W.13), stated about various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
9. In their statements recorded under section 342, Cr.P.C. All the appellants denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They, however, admitted existence of a dispute between them and the complainant party over an Ihata. While answering a question as to why he had been implicated in this case and as to why the prosecution witnesses had deposed against him, Nisar Masih appellant had stated as follows:-- "It is a false case. In fact on the day of occurrence I was present in the Ihata which was under dispute with the complainant party. When at about 9-00 a.m. Amrat Masih, Ayub Masih, Albert Masih P.Ws. And Sharif Masih deceased duly armed with hatchet and Dangs entered into the said Ihata and tried to take over the possession of the same forcibly by inflicting injuries to me and I in my private right of self-defence of my person and property caused injuries to Sharif Masih deceased only. Co-accused Sansar Masih and Niamat Masih were not present at the spot at that time. The injuries on the persons of Amrat Masih, Ayub Masih and Albert Masih were not caused during the occurrence. Rather those are self-suffered and the complainant party twisted the mode of occurrence with the connivance of the police and involved myself and my co-accused under the false charge in this case. The P.Ws. Have deposed falsely due to their relationship with the deceased."
' The other two appellants had also made statements on the same lines. All the appellants opted not to make any statement on oath under section 340(2), Cr.P.C. However, Nisar Masih appellant produced Dr. Salamat Ali Chaudhry in his defence as D.W.1 who had statedly medically examined Nisar Masih appellant at 2-30 p.m. On 17-12-1995 and had found 9 injuries on his person caused within a duration of 6/8 hours. Injuries Nos.7 and 9 had been caused with a sharp-edged weapon whereas the remaining injuries had been caused by a blunt weapon.
10. At the conclusion of the trial the learned Additional Sessions Judge, Chichawatni convicted and sentenced all the appellants as noticed and detailed above. Hence, the present appeal, revision petition and the connected murder reference before this Court.
11. We have heard the learned counsel for the appellants and the learned counsel for the State and the complainant and have also gone through the record of this case with their assistance.
12. It has been argued by the learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. He has further argued that Nisar Masih appellant had admitted his involvement and participation in the occurrence in question and that his version of the incident inspired confidence, especially due to the fact that the injuries sustained by him during the occurrence had been suppressed by the prosecution and the same had been duly proved by D.W.I. According to the learned counsel for the appellants Nisar Masih appellants's plea based on his exercise of right of private defence of person and property merits acceptance and the other two appellants ought to be acquitted as having been falsely implicated in this case on their being brothers of Nisar Masih appellant. In the alternative he has argued that the motive set up by the prosecution had not been proved and also that it was a case of a sudden flare-up without premeditation and, therefore, in the peculiar circumstances of this case Nisar Masih appellant did not deserve the sentence of death passed against him by the learned trial Court. As against that the learned counsel for the State as well as the complainant have argued that the guilt of the appellants had been proved by the prosecution to the hilt and that they had acted cruelly and brutally and, thus, did not deserve any concession in the matter of sentence.
13. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had succeeded in proving its case against the appellants beyond reasonable doubt. It was a daylight occurrence and the F.I.R. Had been lodged with sufficient promptitude with all the necessary details. All the three eye-witnesses produced by the prosecution were not only closely related to the deceased but also to the appellants. All the said eye-witnesses had the stamp of serious injuries on their persons so as to vouchsafe their presence at the spot during the occurrence. In fact all the appellants had, in their statements recorded under section 342, Cr.P.C., admitted the presence of all the three eyewitnesses at the place of occurrence during the incident in question. Nisar Masih appellant had admitted his own involvement and participation in the occurrence. There was no serious reason available for the said eye-witnesses to falsely implicate the other two appellants. Niamat Masih and Sansar Masih appellants are brothers of Nisar Masih appellant and they all lived adjacent to the place of occurrence. Thus, their presence and participation in the incident together was not a claim which could be attributed to exaggeration. While arriving at this conclusion we are fortified by the impression that the number of injuries sustained by the deceased and three injured witnesses could not have been caused by Nisar Masih appellant alone. The eye-witnesses produced by the prosecution had made absolutely consistent statements regarding the main incident and no contradiction between their statements has been pointed out to us. Thus, the said eye-witnesses have inspired our full confidence for placing implicit reliance on their statements. The learned counsel for the appellants really did not have much to argue by Way of criticism of these witnesses.
14. Upon a careful scrutiny of the record we have not felt persuaded by the argument of the learned counsel for the appellants that there was no live motive for the appellants to launch an assault on the complainant party. It is true that in the year 1990 Rehmat Masih, the elder of both the parties, had executed a document (Exh.D.B.) regarding partitioning of the Ihata in question but the said document itself stipulated that the same shall become effective upon the death of Rehmat Masih.
The complainant had stated beft.Re the learned trial Court that Rehmat Masih was still alive and that statement of the complainant was never controverted by anybody. In his statement the complainant had also provided the exact nature of the dispute between the parties regarding the Ihata in question. As a matter of fact the alleged dispute between the parties over that Ihata had been admitted by all the appellants in so many words in their statements recorded under section 342, Cr.P.C. The occurrence had also taken place near the said Ihata. Therefore, in the absence of any other background of hostility or bitterness between the parties, we have arrived at a Confidence conclusion that the dispute over the said Ihata was in fact the issue which had provided the necessary motivation to the appellants propelling them into aggression against the complainant party. Thus, this admitted motive provided sufficient corroboration to the ocular account furnished by the eye-witnesses in the present case.
15. Blood-stained knife and daggers had been recovered from the appellants during investigation of this case and the said recoveries had been proved by Yousuf Masih (P.W.9). The Serologist had found the said knife and daggers to be stained with human blood. Yousuf Masih (P.W.9) was not seriously cross-examined so as to tarnish his reliability qua the said recoveries affected from the appellants. Therefore, the said recoveries have provided further corroboration to the eye-witness account.
16. The medical evidence brought on the record by the prosecution provided full support to the ocular account. The time of occurrence, the weapons used and the seats of injuries stated by the eye-witnesses were all confirmed by the medical evidence.
17. As already noticed above the F.I.R in this case had been lodged with reasonable promptness and the same contained all the necessary details of the incident in question. No serious challenge was thrown by the defence to the stated time and place of lodging the F.I.R. We have, thus, found that the same to be yet another circumstance providing corroboration to the ocular account.
18. Adverting now to the version of the incident put forth by the defence, we have faced no reluctance in rejecting the same. The onus to prove the plea of exercise of right of private defence had not been sufficiently discharged by Nisar Masih appellant. He had failed to make any statement on oath under section 340(2), Cr.P.C. No eye-witness as produced in support of the defence version of the incident. The only witness produced in defence was Dr. Salamat Ali Chaudhry (D.W.1) who had statedly medically examined Nisar Masih appellant on the day of occurrence. The evidence provided by this witness has failed to inspire our confidence. D.W.1 had examined Nisar Masih appellant as a private case, he had failed to inform the police about the injuries allegedly sustained by the appellant as a result of violence, the Rural Health Center where he had examined the appellant did not fall in the area to which the appellant belonged; no explanation was available as to why the appellant had not gone to the Rural Health Center available in his own area; and the injuries detailed by D.W.1 in the medico-legal certificate (Exh.D.E.) were such that, if actually suffered by Nisar Masih appellant, he could not use his right arm to inflict so many injuries in retaliation to four persons of the complainant party. Thus, we have entertained serious doubts about the genuineness of the medico-legal certificate issued by D.W.1 in respect of Nisar Masih appellant. We have also noticed that the version of the incident put forth by the defence did not explain the injuries sustained by the three eye-witnesses produced by the prosecution. The injuries sustained by the said witnesses were duly proved by the prosecution and the same could not be termed a self-suffered. Apart from all that the accused party neither took the plea of self-defence before the Investigating Officer nor any executive or judicial authority was ever moved in that regard. For all these reasons we have found that the plea of defence and its version did not call for any serious credence.
19. For the reasons mentioned above we are convinced that the prosecution had succeeded improving the guilt of the appellants 'beyond reasonable doubt and, therefore, we are minded to uphold the appellants' convictions recorded by the learned trial Court.
20. We have also given our anxious consideration to the question of sentences to be passed against the appellant for the offences committed by them. In this context we are mindful of the fact that it was the prosecution's own case that shortly before the occurrence the parties were peacefully sitting together with no apparent aggressive designs. But, the same time, the act of the appellants in going inside their own house, bringing out knife and daggers and launching an all- out assault on the complainant party surely demonstrated the fact that they had formed an intention to kill. The weapons used and the seats of injuries chosen by the appellants left no doubt as to what they had intended. There is no gainsaying that an intention to kill can be formed even at the spur of a moment and the same is decipherable from the circumstances of a case. The circumstances of this case were such that we have entertained no doubt as to formation of an intention to kill on the part of the appellants and their sharing of common intention in that regard. It was not just Nisar Masih appellant who had caused the fatal and other injuries to Sharif deceased but the other two appellants had also done their bit by giving dagger blows to the deceased besides injuring the three eye-witnesses on their vital parts. Thus, all the three appellant were not only rightly convicted for offences under sections 302/34 and 324/34, P.P.C. But were also liable to be sentenced accordingly. There was no mitigating circumstance warranting lesser sentence for Nisar Masih appellant. He had caused the fatal injury to Sharif deceased. He was, thus, rightly awarded the sentence of death. As the other two -appellants had not been attributed the fatal injury to the deceased, therefore, the learned trial Court had, in exercise of its discretion, decided not to award the sentence of death against them. The exercise of discretion by the learned trial Court in that regard was not adverse to the settled principles of safe administration of criminal justice and, therefore, the same does not call for interference by this Court.
21. While dwelling on the question of sentences passed against the appellants we have noticed that the learned trial Court had failed to award compensation to the injured victims on all the three counts of section 324/34, P.P.C. We have further noticed that the sentences order by the learned trial Court in default of payment of compensating are also not in accord with the relevant law.
22. For the foregoing reasons the appellants' convictions under sections 302/34 and 324/34, P.P.C.
Are upheld. The sentence of death passed against Nisar Masih appellant under section 302(b), P.P.C. And the order of. Payment of compensation by him are maintained. He shall suffer six months' S.I. In case of default in payment of compensation by them are also maintained. They shall suffer six months' S.I. Each in case of default by them in payment of compensation. The sentences of imprisonment for life passed against Niamat Masih and Sansar Masih appellants each under section 302/34, P.P.C'. And the order of payment of compensation. The sentences of imprisonment and fine as well as those of default of payment of fine passed against all the appellants on three counts section 324/34, P.P.C. Are also maintained. However, it is ordered that half of the fine, if realized, shall be paid to the respective victims of assault by way of compensation. As already ordered by the learned trial Court, all the sentences of imprisonment passed against the appellants shall run concurrently and the appellants shall also be entitled to the benefit under section 382-B, Cr.P.C.
23. For what has been held above Criminal Appeal No,359 of 1996 is hereby dismissed and the appellants' convictions and sentences are upheld I except to the extent of the slight modification mentioned above. Likewise, Criminal Revision No,170 of 1996 filed by the complainant and the other injured victims stands dismissed to the extent of enhancement of sentences of Niamat Masih and Sansar Masih convicts but the same is partly allowed to the extent of awarding of compensation to the injured victims in the terms detailed above.
24. As the sentence of death passed by the learned trial Court against Nisar Masih appellant has been confirmed by us, therefore, Murder Reference No,70 of 1997 is hereby answered in the