1970 P Cr (PLP)

M. R. KHAN, J.‑These six appellants ware tried under section 302/149 of the Pakistan Penal Code for the murder of Allah Dia. They were also tried under section 148 of the Code. Four other persons, namely, Qaim Din, Bashir Ahmad, Nazir Ahmad and S'ohna were also tried along with them under sec tion 302/109, P. P. C. The trial Court convicted these six appellants under section 302/149 and sentenced each of them to suffer death. They were also found guilty under section 148, P. P. C., but no separate sentence was passed under that section. Of the four co‑accused tried under section 302/109, P. P. C., Qaim Din died during the pendency of the trial and the remaining three were acquitted. The appellants preferred an appeal to the High Court of West Pakistan, Lahore, against their conviction and sentences. The appeal and the death reference were heard, by a Division Bench of that Court and were disposed of by a single judgment. The High Court dismissed the appeal and confirmed the death sentence in posed on each appellant. The present appeal, by special leave, is from the judgment of the High Court. . The prosecution case is that the appellants and the acquitted accused belonged to one party and had enmity with Allah Dia, deceased. On the 5th June 1966, at about 1‑30 p. m., the appellants Atta Muhammad and Abdul Aziz came to Allah Dia's house and took him away on the pretext that they had some business with him. Arif, a minor son of Allah Dia and Hidayat Bibi, a minor daughter of Allah Dia followed their father. Shortly afterwards, Mst. Resham Bibi, wife of Allah Dia‑ heard the alarm raised by her children Arif and Hidayat Bibi. She then, along with her brother Muhammad Sadiq, rushed out of the house and saw that the appellants were beating Allah Dia in front of the nearby house of one Ali Ahmad with the weapons in their hands. Of the appellants, Atta Muhammad was armed with a Gandhali and Abdul Aziz with an iron‑bar: Shat Muhammad had a danda, Muhammad Yaqub a dang and Ismail and Mehr Din had one wooden thapi, each. Having caused injuries to Allah Dia with these weapons, the appellants dragged him up td the house of one Sada and there also they inflicted injuries on Allah Dia with their respective weapons. Mst. Resham Bibi and her children Arif and Hidayat Bibi attempted to rescue Allah Dia but failed. Having inflicted innumerable injuries on the person of Allah Dia, the appellants went away with their respective weapons. As a result of the injuries, Allah Dia died at the spot within a few minutes. Mst. Resham Bibi then went to the Police Station, Qasur, at a distance of two miles and lodged an F. I. R. the same day at 2‑30 p .m. The police arrested all the six appellants on the very date of the occurrence and seized the weapons produced by them which were found to be blood‑stained. The Investigating Officer also took possession of some blood stained earth from the spot. The shalwar of Hidayat Bibi which was found to be stained with blood was also seized. All these articles were sent to the Chemical Examiner for examination. On examination by the Chemical Examiner and the Serologist, all of them were found to be stained with human blood. On post‑mortem examination, multiple injuries were found almost all over the dead body of Allah Dia. Some of his bones and the skull were fractured, and there was extensive internal haemorrhage. In the opinion of the Doctor, the injuries were caused by blunt weapons and that the death was due to shock and haemorrhage on account of those injuries. Both the trial Court and the High Court found that there had been enmity between the deceased Allah Dia and the party of the appellants. The learned Judges of the High Court have found on the basis of both oral and documentary evidence that a criminal case had been started against the acquitted accused Bashir Ahmad and Nazir Ahmad and their father Qaim Din (since dead) for their having assaulted Allah Dia, deceased. They tried to pursuade Allah Dia to withdraw from that criminal case, but Allah Dia did not agree. This was the immediate cause of enmity between the parties. There was also enmity between the parties from before, as found by the High Court. The trial Court convicted the appellants on the basis of the direct evidence of Mst. Reshant Bibi (P. W. 7), Hidayat Bibi (P. W. 8), Arif (P. W. 9) and Muhammad Sadiq (P. W. 10), as corroborated by the recoveries of weapons from the appellants which were found on examination to be stained with human blood. Learned Judges of the High Court believed the direct evidence of Mst. Resham Bibi, Hidayat Bibi and Arif, but excluded the evidence of P. W. Muhammad Sadiq, apparently, 'by way of abundant caution, as that witness, though a brother of Mst. Resham Bibi, was residing at a place at some distance from the house of the deceased. However, the learned Judges fully believed the evidence of the wife, son and daughter of the deceased and gave convincing reasons for believing their evidence. Mst. Resham Bibi, Arif and Hidayat Bibi being the inmates of the deceased's house and the occurrence having taken place at the time of the mid‑day meal, the presence of these witnesses was only natural. Hidayat Bibi (P. W. 8) is aged 9 or 10 years. The trial Court wets satisfied as to her intelligence to give evidence and recorded a note to that effect. It appears from her evidence that she, though a child witness, withstood the severe cross‑examination fairly. She stated in her examination‑in‑chief that her shalwar was smeared with blood, but did not say that this happened when she had tried to rescue her father. In cross‑examination, she said that her shalwar was stained with blood at the time when she and others placed the deceased on a cot. This statement in cross-examination is not in conflict with her statement in examination in‑chief, as supposed in the order granting leave. In fact, she could not come into contact with his father during assault on account of the resistance of the appellants. Hence the question of her shalwar being smeared with blood at the time of her attempt to rescue her father did not arise. Her shalwar which was sent to the Serologist was also found to be stained with human blood. This goes to show that she was present at the place of occurrence. As regards the recoveries of weapons, these were produced by the appellants from their respective houses immediately after their arrest on the very date of the occurrence. Both the Courts believed these recoveries. These weapons, as already stated, were found to be stained with human blood. These recoveries, therefore, furnished evidence corroborating the evidence of the eye‑witnesses. Learned counsel for the appellants submits that the occurrence did not take place at the time as alleged by the prosecution inasmuch as the stomach of the deceased, according to the: medical evidence, contained semi‑digested food and the time between the injuries and death was three to four hours. This contention was also raised before the trial Court and the High Court but they refused to give any importance to this part d i6c Medical evidence in the face of the direct evidence of the eye‑witnesses. Moreover, the learned Judges of the High Court were of the vie;‑ that the evidence was inconclusive as to whether the deceased was actually having his meal when he was called away from his house by the appellants Atta Muhammad and Abdul Aziz. The evidence of the eye‑witnesses, if believed, is sufficient to establish the guilt of the appellants. Both the Courts below believed their evidence. Besides, their evidence was corroborated by the recoveries of the blood‑stained weapons which Eere also believed by both the Courts. Thus there are sufficient materials on record to justify the appellant's convictions. As regards sentences, learned counsel submits that all the appellants do not deserve the extreme penalty of death. We think that there is substance in this contention. Of the appellants, Atta Muhammad and Abdul Vi/ called away Allah Dia from his house on false pretext. Both of them were armed with deadly weapon;. Atta Muhammad had been armed with a Gandhali and Abdul Aziz had an iron‑bar. Both these weapons, by their very nature, sire dangerous. The death sentences imposed on the appellants Atta Muhammad and Abdul Aziz are, there fore, justified and do not call for any alteration. As regards the remaining our appellants, namely, Shah Nluhanimad, Muhammad Yaqub, Ismail and Mehr Din, their respective weapons were not as deadly us the weapons in the hand, of Atta Muhammad and Abdul Aziz. These were either dangs or wooden thapis. We, therefore, think that the ends of justice would be met if the sentence of death on each of t e ‑ic four appellants is altered to one for transportation for life, and we alter their sentences accord ingly. With this modification of the sentences of the appellants Shah Muhammad, Muhammad Yaqub, Ismail and Mehr Din, the appeal is dismissed. Appeal partly accepted.