' ZAFAR PASHA CHAUDHARY, J.--- Criminal Appeal No,96 of 1982, Criminal Appeal No,171 of 1981 as well Criminal Revision No,178 of 1981 are the subject-matter of this judgment. Criminal Appeal No,171 of 1981 had been tiled by Fateh Khan who has been convicted under section 302, P.P.C. And sentenced to imprisonment for life with a fine of Rs,2,000. Criminal Appeal No,96 of 1982 is by the State against three acquitted accused persons namely Gulzar, Naubahar and Phul Bahar. Criminal Revision No,178 was filed in 1981 because by that time Criminal Appeal had not been filed. It appears that the same had been filed out of abundant caution in case the appeal was not tiled. In view of the State appeal the criminal revision qua acquitted accused is not even maintainable, the same can remain confined only to the enhancement of sentence awarded to Fateh Khan convicted accused.
2. Four accused persons namely Fateh Khan, Gulzar Hussain, Nobahar and Phul Bahar were sent up to face trial in the Court of Mr. Lutuf Ali Malik, learned Sessions Judge, Jhelum. The learned trial Judge on conclusion of the trial acquitted three accused persons namely Gulzar Hussain, Nobahar and Phul Bahar, whereas, Fateh Khan accused was convicted under section 302, P.P.C. And sentenced to suffer imprisonment for life with a tine of Rs,2,000 in default thereof to undergo R.I. For one year. On recovery the amount of fine was to be given to the legal heirs of the deceased as compensation.
3. The prosecution case as emerges from the statement of Muhammad Khan complainant P.W.9 is that on 1-5-1980 at about 11-00 a.m. His brother Lal Khan deceased had gone to the water pond on his donkey to fetch water. No sooner he returned from the pond four accused persons' namely Fateh Khan alias Khalid, Nobahar, Phul Bahar alias Babu and Gulzar sons of Karam Hussain all armed with hatchets emerged therefrom. Lal Khan ran towards the water pond to save his life. He was chased by the accused persons. Nobahar while running behind him inflicted a hatchet blow on his head as a result of which Lal Khan fell down on the ground. Thereafter, all the three co- accused also gave him hatchet blows on his head and back, both from sharp as well as blunt side.
On the alarm raised by Lal Khan, complainant Muhammad Khan, Ghulam Hussain and Fazal Hussain who had also gone there to teed their animals with water on the pond, came at the spot.
The accused persons on seeing them fled away towards their Dhokes. Lal Khan succumbed to the injuries at the spot.
4. The motive was alleged to be that about 19 years prior to the occurrence Mst. Sumera daughter of Karam Hussain i.e, sister of the accused persons had been murdered and Lal Khan was suspected to be her murderer. To avenge her murder, Lal Khan was done to death by all the four accused persons.
5. Dr. Asghar Hamid Qureshi P.W.1 conducted the post-mortem examination of the deceased and found the following eight injuries on his dead body:--
(1) Multiple incised wounds making one large wound 16" long and 1-3/4" wide x brain deep and facial bones deep encircling the skull cutting through the skull bones. The skull bones were cut widely open, starting on the back from the right side of the back of the skull just behind the right ear going towards the left below the occiput, going round reaching the left side of the skull, going forward, covering the whole of the left side of the skull and reaching the left side of the forehead turning below cutting through left cheek and reaching left angle of mouth. The skull and facial bones were all widely cut open along the course of the wound. Anteriorly it ended into four wounds and posteriorly it started as two wounds. The brain matter was destroyed and was flowing out. The whole of the occipital bone, left temporal, left parietal, left side of frontal, left maxilla and mandible bones were all cut open.
(2) Incised wound 2-3/4" x 1/2" x bone deep, on left cheek, just in front of left ear. The bone underneath was cut.
(3) An incised wound 1-3/4" x 3/8" x brain deep on the back of the skull, over the occipital, just above injury No,1 . The skull bone underneath was cut through and through.
(4) Multiple reddish blue contusion marks in an area 12" x 6-1/2", on the back of right chest below scapula, all fused together into one area.
(5) Multiple reddish blue contusion marks in an area 8" x 3-1/2" on the hack of left chest and scapular area.
(6) Hard abrasion 7/8" x 1/2" on top of right shoulder.
(7) Abrasion 1-1/4" x 1/4" on outer side of right arm upper part.
(8) Hard abrasion 2" x 1-1/2/8" on the back of left chest below the scapula close to spine. The death was caused due to extensive injuries to the brain. Injuries Nos.1 and 3 individually as well as collectively were sufficient to cause death. The injuries were ante-mortem and caused with heavy sharp-edged weapon. Apart from injuries Nos.1, 2 and 3, the rest of the injuries were caused with blunt means.
6. The prosecution examined nine witnesses in support of its case, out of them Muhammad Khan P.W.9 and Ghulam Hussain P.W.10 furnished the eye-witness account of the occurrence. Saiyed Hadi Hussain Shah P.W.11 conducted the investigation. During the course of investigation Nobahar accused on 3-6-1980 while in police custody led to the recovery of hatchet P.3 which was taken into possession vide recovery memo. Exh.P.C. Similarly Fateh Khan accused got recovered hatchet P.4 and Guizar Hussain got recovered hatchet P.5 which were taken into possession vide memo.
Exh.P.D. And Exh.P.E. Respectively. On completion of the investigation they were sent up to face trial in the Court of Mr. Lutaf Ali Malik, learned Sessions Judge, Jhelum, who on conclusion of the trial, convicted and sentenced Fateh Khan accused whereas, the remaining were acquitted as noted above.
7. During the trial both the eye-witnesses furnished the details of the occurrence and reiterated what has been detailed in the F.I.R. Exh.P.G. Lodged by Muhammad Khan complainant P.W.9.
8. The learned trial Judge after appraising the evidence held that so far as statement of P.W.10 Ghulam Hussain was concerned. He gave satisfactory explanation about his presence at the spot and as such he seemed to be a natural witness. Although he was not believed qua acquitted co- accused, however, his testimony against Fateh Khan was believed and his conviction was recorded accordingly.
9. The main stance taken by the learned counsel for the appellant is that all the witnesses were interested in the sense that they were related to the deceased and were also inimical to the accused, therefore, being interested, their testimony should not have been relied upon. The accused/appellant's contention may be of some relevance qua Muhammad Khan complainant P.W.9 being real brother of the deceased but as far as Ghulam Hussain P.W.10 is concerned he has no direct relationship with the deceased. He has satisfactorily explained his presence at the place of occurrence and as observed even by the learned trial Judge, his presence at the place of occurrence can safely be accepted. The occurrence took place at 11-00 a.m., therefore, it was a broad day occurrence which could not go unwitnessed, as such the testimony of P.Ws. Cannot be discredited. The accused persons received a large number of injuries which were described under eight items but in fact they have been detailed as multiple injuries. It is, therefore, impossible to conceive that injuries would have been caused by one person. Had there been single assailant armed with hatchet, the attack would have been resisted by the deceased and the assailant could not have possibly caused injuries as has been done in the present case. It is, therefore, certain that the assailants were definitely more than one. They inflicted injuries mercilessly both from sharp as well as blunt side of the hatchets.
10. Three acquitted accused persons came forward with the plea of alibi as they all were ex-Army personnels and according to them they had been summoned in their respective units and were asked to report back to the units and according to them at the relevant time they were present in their units. The learned trial Judge although relied upon the testimony of Ghulam Hussain P.W.10 yet with a view to eliminate the possibility of false implication conceded the defence plea in form of alibi raised by the acquitted accused namely Nobahar, Phul Bahar and Gulzar Hussain. As regards Gulzar Hussain, State appeal against him was not even admitted, therefore, no notice was issued to him, as such his case is excluded from discussion. The remaining two acquitted co-accused namely Nobahar and Phul Bahar's case remains to be considered in the light of the plea of alibi raised by them. It would be pertinent to observe that the prosecution has to prove its case at the first instance and if the prosecution succeeds in proving the case then following the process of elimination, the defence plea raised by the respective accused persons is considered and assessed. Both Nobahar and Phul Bahar came up with similar pleas as having been called by their respective units. Exh.D.C. Is a notice which has been relied upon by Phul Bahar acquitted accused respondent. According to this notice, he received a letter whereby his leave had been cancelled and he was directed to report immediately to his unit. The letter is dated 21st of some month of 1980. Although the entry with regard to month is not clear but the fact remains that he had been called to unit in 1980 and he was present in his unit.
11. We after going through the same by extending the benefit of doubt adopting the principle of abundant precaution are not inclined to reverse his acquittal to that of conviction, therefore, his acquittal as recorded by the learned trial Judge is upheld and maintained.
12. Coming to the case of Nobahar, we find that as per prosecution case from the very beginning, he was first to open attack, It has been unambiguously stated by the complainant and thereafter, during the deposition of eye-witnesses during trial that he was first to open attack and inflicted injury on the head of the deceased. He is the only accused who had specifically been assigned a specific injury which finds full support from the medical evidence. Following the principle laid down by the Honourable Supreme Court in Tawab's case i.e, to. Sift grain from chaff, the participation of Nobahar in the commission of the offence being an accused with specific attribution of opening the attack and infliction of injury cannot be ignored. Taking up the case of the prosecution alongwith his defence plea in support of which Exh.D.B. Has been brought on the file, we find that Exh.D.E. Is of no help to him. We have gone through the same and find in line 6 that Nobahar had also been called and he was amongst the players who did not report back, the same is evident from lines 5, 6 and 7 wherein, it is stated that all the players despatched except Nobahar. In the last line Nobahar is stated to be on leave. After examining this document we find that the same instead of proving the alibi of Nobahar, lends support to the prosecution version that on the relevant date he was on leave and his presence at the place of occurrence cannot be doubted. His case as such cannot be distinguished from that of his convicted co-accused Fateh Khan. Rather his implication is more elaborate than that of Fateh Khan because he has been specifically assigned a role of opening an attack.
13. As a result of above discussions, we are convinced that the prosecution has successfully discharged its onus. They have proved the case beyond doubt against Fateh Khan, therefore, his conviction and sentence as recorded by the learned trial Judge is unexceptionable. The prosecution has also successfully proved the case against Nobahar but the learned trial Judge has erred in recording his acquittal, therefore, the same is set aside. Accused respondent Nobahar is, therefore, convicted under section 302, P. P.C., and sentenced to imprisonment for life and also to pay a fine of Rs,2,000, in default thereof to further undergo R.I. For one year. On recovery the same will be given to the legal heirs of the deceased Lal Khan. Benefit under section 382-B, Cr.P.C. Is extended to both the convicts. He will be taken into custody forthwith. Copy of judgment be conveyed to the concerned District Magistrate.
14. The State appeal to the extent of Fateh Khan accused respondent is dismissed. The criminal revision seeking enhancement of sentence of Fateh Khan is dismissed. As regards the acquitted accused respondent, the same has been held to be not maintainable. The State appeal is allowed to the extent of Nobahar in the above terms and dismissed against Phul Bahar. All the three matters as such stand disposed of.