' GULBAZ KHAN, J.-Sibtain Shah son of Shahabal Shah, aged 40 years, and Ghulam Hussain Shah son of Khadim Hussain Shah, aged 24 years, residents of village Hussain Shah, were convicted by the learned Sessions Judge, Sargodha, on 23rd January, 1974, under section 302/34, P. P. C. And each of them sentenced to death. They were further ordered to pay a fine of Rs, 2,000 each. Their co-accused Muhammad Hussain Shah son of Jindwaday Shah, aged 23 years, and Muhammad Hussain Shah alias Muhammad All Shah son of Ahmad Ali Shah, aged 33 years. Residents of village Hussain Shah, were given the benefit of doubt and acquitted.
2. Twenty seven/twenty-eight days before the present occurrence, Ghulam Hussain Shah (P. W. 10), a mother's sister's son of Manzoor Hussain Shah deceased, had a dispute with Muhammad Hussain Shah (acquitted accused) over a piece of land and the parties pelted stones at each other. In the course of that occurrence, mother of Muhammad Hussain Shah accused reached there and she was inflicted two stick blows by Manzoor Hussain Shah deceased. The accused bore grudge against the deceased on that account.
3. On 21st November, 1972, at about 4-00/5.00 p.m., Marmot. Hussain Shah deceased went to the house of Muhammad Hussain carpenter P. W. In order to bring the frame of window. Muhammad Hussain Shah alias Muhammad Ali Shah son of Ahmad All Shah and Muhammad Hussain Shah son of Jindwaday Shah reached there and started talking with the deceased. In the meantime, Sibtain Shah and Ghulam Hussain Shah appellants reached there armed with sticks and opened the attack at the deceased. Muhammad Hussain Shah son of Ahmad Ali Shah and Mohammad Hussain Shah son of Jindwaday Shah accused exhorted the co-accused not to allow the deceased go alive. Sibtain Shah and Ghulam Hussain Shah appellant inflicted stick blows to the deceased, who fell down on the ground and died shortly afterwards. The occurrence was witnessed by Mohammad Hussain carpenter, Sadiq All Shah and Ghulam Hussain Shah P. Ws. The accused fled away from the spot. Sadiq All Shah P. W. Informed Bahadur Shah P. W. At his house about the occurrence, Bahadur Shah P. W. Reached the sopt and found Mansoor Hussain Shah lying murdered. He reached Police Station, Saddar Shahpur, the same night, after covering a distance of about 7i miles, and lodged report Exh. P. D., at 9-15 p.m., which was recorded by Alaf Hussain Shah, A. S. I.
4. The A. S. I. Prepared injury statement and inquest report of the deceased and sent the dead body for post-mortem examination. He got prepared site plan Exh. P. F. And added notes with red ink. Lal Hussain Shah S. H. 0 , prepared recovery memo. Exh. P. E. In respect of the clothes of the deceased.
He arrested the accused on 24th November, 1972. Ghulam Hussain Shah accused produced stick P.
3 while Sibtain Shah stick P. 4 which were taken into possession vile memos, Exb. P. H. And Exh. P. C, respectively. The accused were challaned after investigation.
5. Doctor Shah Qutab Hamdani conducted autopsy on the dead body of Manaoor Hussain Shah and found five injuries on his person. Two were contusion marks, one was contusion and two were abrasions. Injury No, 1 was on the left and back side of the neck 1' below the ear. On dissection, it was found that fourth and fifth cervical vertebrae were fractured and dislocated under injury No, 1.
Rest of the organs were healthy. In the opinion of the doctor, the death was duo to shock by fracture and dislocation of the spinal cord. Injury No, 1 was dangerous and sufficient to cause death in the ordinary course of nature. Rest of the injuries were simple. All the injuries were caused with blunt weapon. Death had occurred immediately. Time between death and post-mortem examination was about 24 hours. During cross-examination, the doctor stated that injury No, 1 could be caused if the deceased had fallen with much force against very hard objects like stone, wood etc. The doctor further admitted that injuries Nos. 2, 4 and 5 could be caused by fall.
6. The prosecution produced Sadiq Ali Shah (P. W. 9) and Ghulam Hussain Shah (P. W. 10) as eye- witnesses before the learned Sessions Judge. Muhammad Hussain carpenter (P. W. 2) had left the village without any address. Noor Khan F. C. (P. W. 2) was deputed to effect service of summons on the said witness. He searched for him in Nawan Loke and other adjoining villages, but with no success. He obtained the report of the Lambard a on the summons. A request was made by the learned prosecutor that the statements of Muhammad Hussain carpenter made before the Committing Magistrate on 29th April. 1973, and before the Additional Sessions Judge, on 17th November, 1973, be transferred to Sessions file under section 33 of the Evidence Act. The learned Sessions Judge was satisfied from the evidence of Noor Khan P. C. That the attendance of Muhammad Hussain carpenter could not be procured without unnecessary delay. He transferred the statement of said witness under section 33 of the Evidence Act. The statements of Muhammad Hussain carpenter recorded by the Committing Magistrate as P. W. 9 and by the learned Additional Sessions Judge as P. W. 11, are substantive evidence. The above- mentioned three eye-witnesses involved the two appellants. According to the said witnesses, the appellants armed with sticks had caused injures to the deceased and as a result of those injuries, the deceased had expired at these pot.
7. Ashiq Hussain Shah (P. W. 5), Bahadur Shah (P. W. 8) and Ghulam Hussain Shah (P. W. 10) furnished the evidence of motive.
8. The evidence in respect of the recovery of sticks at the instance of the two appellants need not be discussed as both the sticks were not found to be stained with any blood and it was not possible for the witnesses to say that the same sticks had been used at the time of occurrence.
9. Statement of Sibtain Shah was recorded by the Committing Magistrate. He denied the prosecution allegations and attributed the case to enmity. He did not take up any specific plea before the Committing Magistrate. When examined by the learned Sessions Judge, he stated that hie relative Mohammad Hussain Shah had lodged a report against Ghulam Hussain Shah P. W. And his brothers under section 447, P. P. C. And for that reason the deceased picked up a quarrel with him when he was present in the &nth of Ghulam Hussain and was about to hit him with a kohl, but he gave him a push as a result of which he (deceased) fell down over a mundhi (piece of wood) and received the injuries. He further stated that other accused were not present. Ghulam Hussain appellant denied his participation in the occurrence. The co-accused also did not admit the prosecution allegations.
10. The learned counsel for the appellants contended that the T. I. R. Could not corroborate the statement of the informant as it was an inadmissible document; that both the statements of Mohammad Hussain carpenter recorded by the Committing Magistrate and the Additional Sessions Judge, were also not admissible in evidence. In support of his contention, he cited Chainehal Single v. King-Emperor (I) and Saudagar S;ngh and others v. The Crown (2), that the complainant pa'ty introduced a false motive whereas the motive given by Sibtain Shah appellant WAS correct; that the injuries given to the deceased were not the result of direct blows especially Injury No, 1 and all of them except No, 3, were received when the deceased fell over a mundhi; that the eye-witnesses were interested and hostile towards the appellants and made incorrect statements in Court and also materially improved upon their earlier statements.
11. Bahadur Shah P. W. Is not an eye-witness of the case. Sadiq Ali Shah P. W. Saw the occurrence and rushed to the house of Bahadur Shah P. W. And narrated the entire occurrence to him. 0 al or written statements made by persons not called as witnesses are inadmisible to prove the truth of the matters stated. In the instant case, Sadiq Ali Shah was produced in Court and he deposed before the trial Court that he narrated the occurrence to Bahadur Shah P. W. Under these circumstances, it could not be said that the statement of Bahadur Shah was inadmissible in evidence being hearsay. '(he F. I. R. Was lodged by Bahadur Shah under the provisions of section 157 of the Evidence Act. It is clearly provided in the said section that in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact before any authority legally competent to investigate the fact may be proved. Section 157 of the Evidence Act, requires as a condition precedent to the admissibility of a previous statement, that it should have been made before an authority legally competent to investigate the fact. We feel no difficulty in holding that the F. I. R. Lodged by Bahadur Shah could corroborate his statement made in Court.
After recording the statement of Noor Shah F. C., the learned Sessions {{FOOT NOTE}}
(1) I L R 1945 P C 366 (2) AIR 1944 Lab. 337 {{FOOT NOTE}} Judge was satisfied from his evidence that attendance of Mohammad Hussain carpenter could not be procured without unnecessary delay. Statement of uhammad Hussain carpenter was recorded by the Committing Magistrate as well as by the Additional Sessions Judge and on both the occasions, the said witness was cross-examined at length. In case, the Additional Sessions Judge had not been transferred, the statement made by Mohammad Hussain carpenter would have been used as evidence against the accused. Noor Shah Constable clearly deposed before the trial Court that he found the house of the witness locked and he searched for the witness in the adjoining villages, but could not get any clue. He obtained a report of the Lambardar. In view of that statement, the learned Sessions Judge was justified in admitting the statements of the said witness under section 33 of the Evidence Act. Under these circmstances, the authorities cited by the learned counsel for the appellants were not applicable.
' Ashiq Hussain Shah (P. W. 5) introduced a new motive which was not mentioned in the F. I. R. By sta ing that 10/12 days before the occurrence. Sibtain Shah appellant was found cutting sugar-cane from the field of Ghulam Hussain, a cousion of the deceased whereupon the deceased reprimanded the said appellant and it led to an altercation and the deceased gave beating to the said appellant. Manaoor Hussain Shah deceased was the maternal uncle of Ashiq Hussain Shah P.
W. Since this motive was not mentioned in the F. I. R., we hesitate to place reliance on the statement of Ashiq Hussain Shah. Bahadur Shah and Ghulam Hussain P. Ws., gave the motive of this case by stating that about a month before the occurrence, mother of Mohammad Hussain Shah son of Ahmad All Shah received injuries from the deceased when a dispute took place between the parties over the land and said Mohammad Hussain Shah had threatened the deceased. According to Sibtain Shah appellant, his relative Mohammad Hussain Shah son of Ahmad Ali Shah accused had reported against Ghulam Hussain Shah P. W. And his brothers. Sibtain Shah had not lodged the report against Ghulam Hussain Shah P. W. And his brothers. The deceased who was a cousion of Ghulam Hussain P. W., could not pick up quarrel with Sibtain Snah appellant on that account. Had he reported the matter at the Police Station, it could have been said that Ghulam Hussain Shah P.
W. Or his relatives had a grudge against him on that account. Mohammad Hussain Shah did lodge a report, on 28th August, 1972, against Ghulam Hussain Shah and his brothers, but the immediate motive was that the mother of Mohammad Hussain Shah accused had received injuries from the hands of the deceased and on that account, the accused party wanted to avenge that beating.
The motive as given by the complainant party, was proved in this case.
' The place of occurrence is not in dispute. It had taken place in the house of Mohammad Hussain carpenter. He was the natutral witness. House of Sadiq All Shah was adjacent to that of Muhammad Hussain carpenter. Their houses were separated by a small wall. On hearing the noise, Sadiq Ali Shah P. W. Rushed to the spot and saw the occurrence. The third eye-witness namely, Ghulam Hussain Shah, was present at the shop of Khadim Hussain butcher, which was situated close to the spot of occurrence. Site plan indicates that the shop of Khadim Hussain was adjacent to the house of Mohammad Hussain carpenter. Ghulam Hussain Shah P. W. Lived at a distance of square from the spot of occurrence. He gave explanation of his presence at the shop of Khadim Hussain. Mohammad Hussain carpenter was absolutely disinterested witness. He had no motive to make false statement against the appellants. Sadiq Ali Shah P. W. Was related to both the parties.
He had no enmity with the appellants. We take him to be a disinterested witness. Ghulam Hussain Shah (P. W. 10) had a dispute over the land with Mohammad Hussain Shah son of Ahmad Ali Shah accused and had also a criminal case with him and thus an interested witness. He resided at a distance of l spares from the spot. He had come to the village to inquire about the rate of cotton.
He was a chance witness. He made material contradictions with his earlier statement and for these reasons, we should keep his statement out of consideration.
' Mohammad Hussain Shah carpenter had stated before the Committing Magistrate that Mohammad Hussain Shah son of Ahmad Ali Shah and Mohammad Hussain Shah son of Jindwaday Shah had caught hold of the deceased. In his statement before the Additional Sesssions Judge, he deposed that the said two accused gave out lalkara. On account of this variation we are not prepared to reject his testimony. We have noticed some more variations in his two statements, but those are not of much significance.
' Sadiq Ali Shah did not contradict his earlier statement. His statement was consistent throughout.
Statement of Mohammad Hussain carpenter was fully corroborated by the statement of Sadiq Alt Shah. The presence of Sadiq All Shah could not be disputed for the reason that after witnessing the occurrence, he rushed to house of Bahadur Shah complainant _ snd informed him of the occurrence. Bahadur Shah had lodged the P. I. R. On the information furnished by Sadiq All Shah P.
W. The statements of Mohammad Hussain carpenter and Sadiq Ali Shah P. We. Were further corroborated by the statement of Doctor Shah Qutab Hamdani. The deceased had five injuries on his person, which had been caused with blunt weapons. Injury No, 1 on the person of the deceased could result with a thick stick. The occurrence had not lasted for long. The other villagers except the neighbours could not witness the occurrence. Several persons had, ho never, reached the spot after the occurrence After having carefully scrutinized the statements of Mohammad Hussain carpenter and Sadiq All Shah, we hold that they made correct statements in Court. We could not find any infirmity in the statement of Bahadus Shah complainant.
12. Sibtain Shah did not take up the plea before the Committing Magistrate which he had taken up at the trial. We are constrained to hold that the plea which he hal taken up at the trial, was an afterthought. We have already held that the deceased had no motive to assault Sibtain Shah appellant, rather the accused had the motive to assault the deceased. Sibtain Shah did not receive any injury. According to him, he was empty-handed. Had the accused attacked him with a lathi, he would have received injuries. The appellant could not give a push to the deceased if the deceased had been armed with a stick because the deceased would not have allowed Sibtain Shah appellant to come near him. The deceased had five injuries on his person. Injury No, 1 was on the back and left side of neck. Injury No, 2 was on the left side of the fore-head. Injury No, 3 was on the right side of the thorax. Injury No, 4 was on the back of right elbow while No, 5 was on the front and upper end of right thigh. The seats of injuries would clearly prove that those could not Noe been caused by a fall. They were on different parts of the body. Some were on the back and some were on the front side. The defence plea stood belied by the medical evidence and other circumstances of the case. We feel no hesitation in rejecting it as being false.
13. The case was proved against the appellants. The learned counsel for the appellants had argued that at the most, the case against the appellants was under section 325, P. P. C. We have no reason to agree with the learned eounsel for the appellants. The case of the appellants does not fall under any of the exceptions. It is clearly provided under section 300, Cr. P. C. Thirdly, that except in the cases hereinafter, culpable.Homicide is murder if the act by which the death is caused is done with the intention of causing such bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. The doctor clearly stated that injury No, 1 was sufficient to cause death in the ordinary course of nature. The blow was given with such force that fourth and fifth cervical vertebrae were fractured and dislocated and the injury also caused laceration of tt.e spinal cord. Both the appellant had gone to the spot armed with sticks and had committed the murde in furtheranee of their common intention. Provisions of section 34, P.
P. C. Were attracted in this case. The witnesses tried to attribute specific injuries to the appellants by stating that both the appellants bad caused one blow each to the deceased on the left side of the neck. Bahadur Shah bad lodged the F. I. R. On the information received from Sadiq Ali Shah. He did not attribute the specific injuries to the appellants. He simply mentioned in the F.
1. R. That the t two appellants caused injuries to the deceased with sticks. It was not clear as to whose injury had proved fatal. Under these circumstances, the extreme penalty in the case was not called for. A sentence of imprisonment for life to each of the two accused and a fire of Re. 2,000 each would meet the ends of justice in this cue. While dismissing the appeal, we reduce the sentence of Sibtain Shah and Ghulam Hussain Shah to imprisonment for life each and a fine of Re.
2.000 each. The sentences of death passed upon Sibtain Shah and Ghulam Hussain Shah are not confirmed.