' GHULAM MUJADDID MIRZA, J.-According to the prosecution version, the brief facts of the case are that the complainant party originally belonged to Jalkot in the Tribal Belt of Hazara District. Like other Kohistanis, the complainant party used to come to the plains of Chhach during winter 'season in order to earn their livelihood. Abdus Siddiq deceased and his son Muhammad Khan deceased along with their other family members came from Kohistan to village Bahboodi about fifteen days prior to the occurrence and set up their dera there. Early in the morning on 7-114970, both the deceased along with Yar Khan (P. W. 10), Afzal Khan (P. W. 11) and Mst. Khadeja (P. W. 13) went to the Bus-stand of Shinka where they met Sajawal Khan and Fateh Khan appellants who offered to engage them for peeling off their maize cobs. The deceased and the P. Ws. Agreed to do that job and accompanied them to their well where two stacks of maize cobs were lyings. At the well Fateh Khan appellant offered nine seers of maize cobs per head per day as wages for the job.
Yar Khan P. W., however, did not agree to this offer and instead demanded 10 seers. The appellants did not agree to this demand. The result was that the complainant party refused to do the work and wanted to come back from the well. It is alleged that the appellants felt offended on the adamant attitude of the complainant party and abused them. Yar Khan P. W. Retaliated in abusive language. On this, Fateh Khan appellant is alleged to have given a stick blow on the back of Yar Khan P. W. Then they grappled with each other. Fateh Khan appellant also gave a tooth bite on the finger of Yar Khan P. W. Abdus Siddiq deceased came forward to intervene. Fateh Khan appellant exhorted his brother Sajawal Khan appellant to use his knife. On this the latter took out a chhuri from his dub and inflicted a blow on the chest of Abdus Siddiq who fell down and died. Muhammad Khan deceased then stepped forward to save his father when Sajawal Khan appellant gave a similar chhuri blow on his chest. He too fell down and died on the spot. The appellants then left the place of occurrence. Yar Khan P. W. Then went to Police Station, Hazro and lodged the F. I. R. (Exh. P.
A) at 10-30 a. m. On the same day. A. S. I. Abdul Razzak P. W. After recording the F. I. R. Prepared the injury statement of Yar Khan P. W. (Exh. P. N.) and sent him for medical examination. He then proceeded to the spot reaching there at 12-15 noon. He prepared the injury statement of Abdus Siddiq deceased (Exh. P. O.) and his inquest report (Exh. P. Q.). He also prepared the injury statement of Muhammad Khan deceased (Exh. P. R.) and his inquest report (Exh. P. S.). He then despatched the dead bodies to the mortuary for postmortem examination. He collected blood- stained earth vide Memo. Exh. P. B. From the place where Abdus Siddiq deceased was lying dead.
Similarly, he collected blood-stained earth vide Memo. Exh. P. C. From the place where Muhammad Khan was lying dead, and sealed them into separate parcels. He also recorded the statements of the eye-witnesses at the spot who were there. He got prepared site plan (Exh. P. K.) from Mushtaq Hussain Patwari, P. W. Mirza Abdul Hakim S. H.
0. Reached the spot at 2 p. m. On 7-11-1970. He took over the investigation and the parcels from A. S. I. Abdul Razzak P. W. Both the appellants were produced before him and he took them into custody.
He found Sajawal Khan appellant injured. He prepared his injury statement (Exh. P. T.). He also found Fateh Khan appellant injured and prepared his injury statement (Exh. P. U.) and sent both of them for medical examination. The Investigating Officer took into possession the blood-stained clothes of both the deceased persons which were brought before him by F. C. Mohammad Rehan P.
W. On 9-11-1970 Sajawal Khan appellant led the police to .a kotha from where be got recovered blood-stained chhuri (Exh. P. 1). It was taken into possession vide Memo. Exh. P. D. And sealed into a parcel. After the usual investigation, the police challaned both the appellants under sections 302/34 and 323/34, P. P. C. They were tried by the Sessions Judge, Campbellpur, who vide the impugned judgment dated 29-3-1971 convicted Sajawal Khan appellant under section 302, P. P. C.
For the murder of Abdus Siddiq and sentenced Win to life imprisonment and to pay a fine of Rs, 2,000 or in default to undergo further rigorous imprisonment for two years. He further convicted Sajawal Khan appellant under section 302, P. P. C. For the murder of Muhammad Khan and sentenced him to life imprisonment and to pay a fine of Rs, 2,000 or in default to suffer further rigorous imprisonment for two years. The main sentences were ordered to run concurrently but those in default of payment of fine were ordered to run consecutively. Fateh Khan appellant was convicted under section 323, P. P. C. For having caused hurt to Yar Khan P. W. And sentenced to undergo rigorous imprisonment for six months. He was, however, acquitted of the charge of murder. The appellants have challenged their convictions and sentences before this Court through Cr. A. No, 262 of 1971. The State has filed '-Cr. R. No, 51 of 1972 for enhancing the sentence of life imprisonment to death on both counts. This judgment will dispose of both the Criminal Appeal as well as the Criminal Revision.
2. Dr. F. M. Khan P. W. Medically examined Fateh Khan appellant on 8-11-1970 at 11 a. m. And found the following injuries on his person :-(1) A contused wound, 3/4"x 4' x 1/8' on forehead to the left side and 24" above the left eye-brow with irregular margins. (2). The doctor examined the bleeding tooth (second upper left incisor) of Fateh Khan which was also shaky. Both the injuries were caused by some blunt weapon within 24 to 30 hours duration and were simple in nature. On the same day the same doctor also medically examined Sajawal Khan appellant and found the following injury on his person :- (I) A contused wound, 1" x1/3"x 1/8" on the forehead (right side), 2' above his right eye-brow. The margins of the wound were irregular. The injury was caused by some blunt weapon within 24 to 30 hours duration. The injury was simple in nature. Dr. Abdul Jabbar on 7-11-1970 at 11- 45 a. m. Medically examined Yar Khan P. W. And found the following injuries on his person :-(1)
Superficial lacerated wound, 3' x r on the palmer aspect of terminal phalanx of right ring-finger. (2)
Superficial lacerated wound, I" x 1/6" at the back of terminal phalanx of right ring-finger just at the root of the nail. (3) Contusion, 3" 4" on the back of right side chest over the shoulder blade. All the injuries were simple in nature caused by a blunt weapon within the duration of 3 to 4 hours.
3. On the same day, at 2-15 p. m., the same doctor conducted the post-mortem examination on the dead body of Abdus Siddiq and found the following injury on it :-(1) A stab wound 1}" x f" chest cavity deep on the front of right side of chest, oblique in direction 3/4" to the right of middle line of chest at a distance of 3" from the right nipple at about 34 o'clock position. On internal examination underneath this injury, filth right rib was found cut. The pericardium and the right ventricle of the heart were also found cut. Injury No, 1 was caused by a sharp-edged and pointed weapon and it was grievous and dangerous to life Death occurred due to shock and haemorrhage as a result oft his injury. This injury was alone sufficient to cause death in the ordinary course of nature. Probable time that elapsed between injury and death was instantaneous and between death and post- mortem examination was about 5 to 7 hours.
4. On the same day the same doctor conducted post-mortem examination on the dead body of Muhammad Khan and found the-following injury on it :-(l) A stab wound, 1" x 3/8' x chest. Cavity deep on the front of lower part of chest just in the middle line of chest, oblique in direction, at about 4 o'clock position from the right nipple. On internal examination under injury No, 1 the sternum (chest bone), pericardium and right ventricle of the heart were found cut through and through. The injury was caused by a sharp-edged and pointed weapon. Death was due to shock and haemorrhage as a result of this injury. The injury was sufficient individually to cause death in the ordinary course of nature. Probable time that elapsed between injury and death was instantaneous and between death and post-:n)rtem. Examination about 6 to 8 hours.
5. The prosecution in support of its case has relied upon the ocular evidence of Yar Khan (P. W. 10), Afzal Khan (P. W. 11) and Mst. Khadeja (P. W. 13). The prosecution also relied upon the medical evidence and recovery of chhuri (Exh. P. 1).
6. Sajawal Khan appellant when examined under section 342, Cr. P. C. Denied the prosecution allegations. When asked why the witnesses had deposed against him, he replied as under :-"Due to their relationship with the deceased who were actually aggressors," When asked to explain the injury found on his person, he deposed as under :- "My brother Fateh Khan and myself made stacks of maize crop a day prior to the occurrence. In the evening I went to my house and brought meals for my brother Fateh Khan for Sehri as it was the month of Ramazan. At sargiwela we took meals and settled down for smoking. Fateh Khan went out to attend the call of nature while I laid down on the cot inside the kotha. I felt attracted by outcries of Fateh Khan. I took sickle lying under my cot and ran towards him. I saw three Kohistanis giving beating to my brother who was lying on the ground. On seeing me, the deceased Siddiq and Muhammad Khan came towards me. One out of them struck a danda blow 'In my head. I used the sickle against them in the exercise of my right of self-defence. Both of them died at the spot, while the third ran away from there."
' He further stated that Afzal and Mst. Khadeja P. Ws. Were not present at the spot.
7. Similarly, Fateh Khan appellant in his statement denied the prosecution allegations. About the prosecution witnesses, he stated that they had deposed due to their relationship with the deceased who were the real aggressors. When asked to explain his injuries he stated as under :- "1 and my brother took meals at Sehriwela. I went out to urinate. I saw three persons near the maize crop stacks. I challenged them. One of them came forward and struck stick blow on my head. I fell down. The other started giving me fist blows. I raised alarm at which my brother Sajawal Khan was attracted. When the assailants were giving me fist blows, I gave tooth bite to the finger of one of them. Then I became unconscious and do not know what happened subsequently."
' He further stated that Afzal and M. Khadeja were not present at the spot. The appellants, however, produced no evidence in defence.
8. Since the defence has admitted the killing of the two deceased persons, let us examine the defence version and see how far it is believable or probable. We have carefully examined the statements of the appellants and the medical evidence and have come to the conclusion that the defence plea is belied by the medical evidence. Although the doctor in cross-examination has admitted that the injuries of the two deceased were possible due to the blow of sickle, yet after a perusal of the actual injuries found on the persons of the deceased, we have no doubt in our mind that these injuries could not be caused with a sickle. It is an admitted fact that a sickle has always a curved blade with serrated edge. Generally it cannot cause such a grievous injury because it is neither so sharp nor so heavy to cause such an injury. Moreover, the injury caused by a sickle cannot be straight and so deep. The edges of an injury caused by a sickle will be irregular or uneven. The injuries on both the deceased persons are on the chest. Such injuries cannot be caused by a sickle by thrusting it into the body. When confronted with this situation, the learned counsel for the appellants tried to argue that the sickle can also be a straight and not a curved one. We do not agree with him. The appellants have not stated that the sickle used in this case was not a curved one. It is a question of common knowledge that a sickle is always curved one. We have not come across a straight sickle. The sickle is generally used for cutting fodder and crops, etc. It can achieve that object only when it is curved one. If it is straight, then it cannot be used for cutting fodder or crops. It wi'l then become a sort of saw (Lejr) Moreover, a sickle is generally a thin one and when thrust into human body with a great force, then it is likely to bend. After careful consideration of the various aspects .Of this issue, we are clearly of the view that the injuries on the persons of the two deceased could not be caused by a sickle as contended by the defence.
Similarly, we are not inclined to believe the version given by Fateh Khan appellant that he saw three persons near the maize crops stacks and when he challenged them, one of them came forward and struck a blow on his head and he fell down and then they started giving him fist blows after which he became unconscious and did not know what happened subsequently. If the two deceased and Yar Khan P. W. Had come to commit theft of maize crop stacks, then there should have been some signs of theft. Moreover, when they were challenged by Fateh Khan, then they would have tried to run away from there. If the deceased party had really come to steal the maize stacks, then when challenged by Fateh Khan appellant, none of them would have taken the initiative to attack him, but would have run away especially when they were not carrying any stolen maize stacks with them and were not armed with any deadly weapons and had no motive to beat the owner. This would be against ordinary human conduct. 1 he last part of the statement of Fateh Khan appellant that on the receipt of injuries at the hands of the deceased party he fell down and became unconscious, is highly improbable because if he had really fallen down and had become unconscious, then he would have been there along with the two dead bodies. He has not explained how, when and by whom he was removed from the place of occurrence. The statement of his brother Sajawal Khan appellant is completely silent about his becoming unconscious or his removal from the place of occurrence. We further observe that the nature of the injuries received by Fateh Khan appellant is not such as to make him unconscious. The Investigating Officer did not find him lying in that unconscious condition. He along with his brother was produced before him by Hazir Khan at about 2-15 p. m. On the day of occurrence. If the incident had taken place as alleged by the defence, then the appellants must have gone to the police station for lodging the report or otherwise informed other persons about the alleged theft of their maize stacks. We have given our anxious thought to this part of the defence version but are unable to believe the same. After taking into consideration the entire relevant material, we have reached the conclusion that the defence version is highly improbable and unbelievable. We have, therefore, no hesitation to reject the same.
9. The prosecution version has been supported by Yar Khan (P. W. 10) Afzal Khan (P. W. 11) and Mst.
Khadeja (P. W. 13). Yar Khan P. W. Is the most important witness in this case. He was injured in the same incident and was medically examined by Dr. Abdul Jabbar on 7-11-1970 at 11-45 a. m. He had three injuries on his person. According to the doctor the duration of the injuries was about 3 to 4 hours. This tallies with the time of occurrence. Fateh Khan appellant in his statement has admitted the presence of three persons. From his admission it can safely be inferied that the third person was this witness namely, Yar Khan P. W. After careful scrutiny of the relevant material available on the record, we are clearly of the view that Yar Khan P. W. Was present on the spot and had witnssed the occurrence. He has deposed in his statement that many persons of his tribe visit Chhach area in winter to earn their livelihood. About 15 days prior to the occurrence he and other members of his family took up their residence in a house in village Behboodi. On the day of occurrence, early in the morning, both the deceased persons, Afzal Khan, Mst. Khadeja and Yar Khan himself left their house in search of livelihood and reached Bus Stand of Shinka where the appellants met them. Sajawal Khan appellant told them to peel off maize cobs. He and his companions agreed to do the job and accompanied the appellants to their well where they reached at about 8 a. m. Fateh Khan appellant offered to give nine seers of cobs per person per day as wages whereas the complainants demanded ten seers per person per day. The appellants did not agree to give ten seers per person per day. Accordingly, the complainant party started coming back. While they were returning the present appellants are alleged to have started abusing the complainant party.
Yar Khan P. W. Retaliated in abusive language. Fateh Khan appellant and the witness then grappled with each other. Fateh Khan appellant is alleged to have given a danda blow on the back of Yar Khan P. W. And also bit on his third finger. On this Fateh Khan appellant is said to have exhorted his brother Sajawal Khan appellant to use his knife. Sajawal Khan appellant accordingly took out chhuri from his dub and wanted to use the same against Yar Khan P. W. When Abdus Siddiq deceased came forward to intervene. Sajawal Khan appellant inflicted a chhuri blow on his chest.
Then Muhammad Khan deceased came forward to separate them. Sajawal Khan appellant also gave a chhuri below on his chest. Both the injured persons fell down and died on the spot. The appellants then fled away. Leaving Afzal Khan P. W. With the dead bodies, Yar Khan P. W. Went to Police Station, Hazro and lodged the F. I. R. (Exh, P. A.) at 10-30 a. m. As mentioned earlier, this witness had received injuries and was medically examined by the doctor at 1145 a. m. On the same day. He was subjected to lengthy cross-examination but the defence could not succeed to shake his testimony. The following questions put by the defence and the answers given by the witness are relevant - "Q.-I put it to you that the occurrence took place during the month of Ramazan. After Sehri you and the deceased went to the field of the accused and were stealing cobs. You were detected by Fateh Khan accused. Then he asked you not to commit theft, you and the deceased attacked him with a soti and felled him down. On the screaming of Fateh Khan, his brother Sajawal accused came out of the kotha at the well and you attacked and caused injuries on his head and other parts of his body as well ?
A.-It is incorrect. Q.-1 put it to you,a,that Sajawal used a sickle against the deceased and you in exercise of the right of private defence and also to save his brother A.-It is incorrect. Q.-I put it to you that Fateh Khan was lying down. You sat on his chest and gave fist blows on his face and caused dislocation of his teeth. It was in these circumstances that he gave tooth-bite to you ?
A.-It is incorrect." .
' From a perusal of the first question reproduced above, it is clear that the defence is admitting the presence of Yar Khan P. W. On the spot along with the two deceased persons. After this admission by the defence coupled with the injuries found on the person of this witness, we have no doubt in our mind that Yar Khan P. W. Was present on the spot and had witnessed the occurrence. He is, therefore, a natural witness. The defence has not alleged any motive against this witness to falsely implicate the appellants. Accordingly we feel no hesitation to believe his testimony. Afzal Khan (P.
W. 11) is neither related to the deceased persons nor inimical towards the appellants. He has categorically denied the defence version that he had not seen the occurrence or that he reached the spot . Afterwards. He, therefore, appears to be an independent witness. He has fully supported the testimony of Yar Khan P. W. Similar is the statement of Mst. Khadeja (P. W. 13) who is the wife of Yar Khan P. W. In spite of lengthy cross-examination, the defence has not been able to shake her testimony. According to the defence Afzal Khan and Mst. Khadeja P. Ws. Were not present on the spot and had' not witnessed the occurrence. This suggestion was duly denied by these witnesses.
We have carefully examined the statements of these eye-witnesses and have come to the conclusion that they are natural and truthful witnesses and had no motive to falsely implicate the appellants. The mere fact that Yar Khan and his wife Mst. Khadeja P. Ws. Are related to the deceased is not sufficient to discredit their testimony. In the peculiar circumstances of the case, as they were strangers in this area and the occurrence had taken place at the well of the appellants early in the morning, there could not be any other person to witness the occurrence except these P.
Ws. Their testimony is also corroborated by the medical evidence. In this background, we find that they were rightly believed by the trial Court.
10. The only argument seriously advanced on behalf of Sajawal Khan appellant is that his case was covered by Exception IV to section 300, P. P. C. And, therefore, his conviction under section 302, P. P.
C. Was bad. According to the learned counsel, this appellant should have been convicted under section 304, P. P. C. However, we find that even under section 304, P. P. C. The appellant could be sentenced to life imprisonment. He committed two murders without any legal justification. In the circumstances of the case, we find that the sentence of imprisonment awarded to him on each count is the appropriate sentence.
11. After taking into consideration the entire material available on the record, we find that the prosecution has proved the guilt of the appellants beyond any reasonable doubt. The appellants were rightly convicted by the trial Court and we maintain their convictions. As regards the sentenc awarded to Fateh Khan appellant, we find that he was granted bail by this Court on 4-5-1971. We are not inclined to send him back to jail at this 4 late stage for undergoing the remaining period of imprisonment. Since he was arrested on the same day when the occurrence took place and remained in jail during the trial which concluded on 23-3-1971, we feel that end justice would be met if his sentence is reduced to the period already undergone by him. We . However, the sentences awarded to Sajawal Khan appellant are maintained.
12. As regards. Criminal Revision No, 51 of 1972 for enhancement of sentences, the only reason advanced by the learned counsel for the State is that it is a case of double murder committed in a cruel manner. However, we find that there was no premeditation in the case. The fight took place suddenly in the heat of passion upon a sudden quarrel when the complainant party refused to accept the offer of the appellants to peel off the maize cobs at the rate of nine seers per head per day. There was no pre-concert between the appellants to commit the murders. The learned counsel for the State has admitted that it was a sudden fight which took place in the heat of passion upon a sudden quarrel. He, however, contends that the blow given by Sajawal Khan appellant was so forceful that it caused death instantaneously. However, he has admitted that this appellant caused only one injury to each of the deceased persons although there was nothing to prevent him to cause further injuries to them. After careful consideration of the relevant material and circumstances concerning the question of sentence, we find that the trial Court has rightly awarded the lesser penalty to Sajawal Khan Appellant on each count. Accordingly, we find no substance in this revision petition and the same is hereby dismissed.
13. The upshot of the above discussion is that Criminal Appeal No, 262 of 1971 is dismissed and the convictions and sentences awarded to Sajawal Khan appellant by trial Court are maintained. The conviction of Fateb Khan appellant under section .323, P. P. C. Is also maintained but his sentence of six months' rigorous imprisonment.Is reduced to the period already undergone by him. He is already on bail. His bail bond shall stand discharged. Criminal Revision No, 51 of 1972 filed by the State is also dismissed.