1. AFTAB FARRUKH, J.-This judgment disposes of Criminal Appeals Nos. 48 and 49 of 1977 and Murder Reference No. 52 of 1977.
2. Inayatullah aged 27, Muhammad Arshad aged 15, Amjad Hafeez aged 16 years and Mst. Khurshid Bibi wife of Lal Din aged 60 years, all residents of Galli No. 1, Rasulpura, Gujranwala City, were tried by Mr. Abdul Bashir, Additional Sessions Judge, Gujranwala for offences under section 302/307/149/452/148, P. P. C. For the murder of Sultan son of Abdul Ghani and murderous assault on P. Ws., Muhammad Sharif, Abdul Latif and Abdul Ghani, and committed criminal trespass in the factory of Abdul Ghani on 3-3-1974 at about 7/7-30 p.m. The trial Court has acquitted Mst. Khurshid Bibi and Muhammad Munir and has convicted the accused appellants as follows :- Under section 302/34, P. P. C. Inayatullah was sentenced to death and a fine of Rs. 5,000in default of the payment of which he will further undergo two-and-a-half years' R. I. The other three accused on the same charge have been awarded life imprisonment and in addition to that a fine of Rs. 1,000 in default of the payment of which, the defaulter will further undergo an imprisonment of six months' R. I. Each of the four accused has been sentenced to two years' R. I. Under section 452, P. P.
2. C. Amjad Hafeez and Riaz Ahmed have also been convicted under section 30734, P. P. C. To a sentence of four years' R. I. And a fine of Rs. 1,000 in default of the payment of which the defaulter will undergo six months' R. I. Out of the fine, if realised, a sum of Rs. 5,000 has been directed to be paid to the heirs of the deceased under section 544-A, Cr. P. C. The case has been referred to this Court for confirmation of death sentence (M. R. No. 52 of 1977). Inayatullah has filed Cr. A. No. 48 of 1977 and Muhammad Arshad, Amjad Hafeez and Riaz Ahmad have filed Cr. A. No. 49 of 1977 against their respective convictions and sentences.
3. Muhammad Arshad, Inayatullah and Muhammad Munir alias Bed are sons of Mst. Khurshid Bibi wife of Lal Din and the other two accused are sons of sister of Lal Din.
3. The occurrence is alleged to have taken place at about 7-30 p.m., in the factory of Abdul Ghani complainant situated in Mohallah Rasulpura at a distance of one mile from Police Station City, Gujranwala. Statement (Exh. P. B.) of Abdulo Ghani was recorded at 8-30 p.m., the same day by Muhammad Saeed Khan P. W. 11 S. I, at Police Post Watch Tower, on the receipt of which at the Police Station City Amanat Khan (P. W. 4) recorded the formal F. I. R. (Exh. P. B./1) at 8-45 p.m. The same day. Chhurri P. 1 was produced b Abdul Rashid (P. W. 7) before Muhammad Saved Khan, S. I.
4. (P. W. 11~ who took it into possession vide memo. Exh. P. E. Which was attested by Muhammad Naseer son of Ghulam Mustafa and Muhammad Saeed Khan son of Haji Khair Din, both of whom were not produced at the trial. All the accused were arrested on the 4th of March 1974, by P. W. 11, Muhammad Saeed Khan, S. I.
4. The case for the prosecution briefly stated is that on 3-3-1974, a1 about degarwela two small children aged 5 or 6 years of complainant Abdul Ghani and that of Lai father of Inayatullah appellant picked up a quarrel. Muhammad Munir acquitted accused threw a brick-bat towards the son of Abdul Ghani, the boys were separated. Sultan aged 17/18 years other son of Abdul Ghani gave a slap to Munir on this count. Munir left the place holding a threat that he would teach him a lesson.
5. It is alleged that at about 7-30 p.m., the complainant along with Sultan deceased, Muhammad Sharif P. W. 8 and Abdul Latif P. W. 9 his real brother was working in their factory and Muhammad Ashraf (given up at the trial) was sitting with them when Muhammad Arshad armed with knife, Inayatullah armed with chhurri, Munir armed with knife-Amjad Hafeez also armed with knife and Riaz armed with long along with Mst. Khurshid Bibi, mother of Inayatullah, Munir, Arshad, armed with fire-wood, came there and immediately on arrival, Inayatullah stabbed Sultan with chhurri who on the receipt of the same in the belly near the hip, fell down. Abdul Latif asked the accused to leave the matter, whereupon Arshad, Amjad started inflicting blows on him with knives. Ghani and Sharif were assaulted by Riaz and Khurshid Bibi by their respective weapons. At this stage, Abdul Rashid (P. W. 7) is to have snatched the chhurri from Inayatullah accused appellant. It is alleged that Munir was holding out threats waiving the knife. The complainant party in the defence of their person claimed to have injured the petitioners by brick-batting. Sultan breathed his last enroute to Hafizabad Hospital, where he was carried for medical treatment. So the complainant carried dead body to Police Post Watch Tower, where his statement was recorded at 8-80 p.m., by P. W. 11 Saeed Khan S. I.
6. The injured were taken to the D. H. Q. Hospital, Gujranwala where P. W. 5 Dr. Nawaz Ahmad Bajwa examined both the parties and also performed the post-mortem examination on the person of Sultan deceased. The doctor on 4-3-1974, examined Inayatullah appellant and observed the following injuries on his person :-
(1) Abrasion on the right elbow joint 4--- x 1".
(2) Contusion on the right scapula.
7. Both the injuries were simple and caused with blunt weapon within the duration of 24 hours.
8. On the same day, the doctor examined Amjad Hafeez and found the following injuries on his person :-
(1) Contusion on the top of the head 2--- x1---;
(2) Coutusion on the right shoulder joint.
9. All the injuries were simple caused with blunt weapon within the, duration of 24 hours.
10. The doctor on the same day also examined Muhammad Munir alias Bed appellant and found the following injuries on his person :-
(1) Contused wound on right of head behind the right ear ;
(2) An abrasion on the right side of the nose ;
(3) An abrasion on the right elbow joint ;
(4) A contusion on the right forehead 1" x 1".
11. All the injuries were found simple, caused with blunt weapon within the duration of 24 hours.
12. The doctor also examined Arshad accused and observed the following injuries on his person :-
(1) Complained of pain in both buttocks.
(2) Abrasion on the right thumb.
13. The injuries were found simple, caused with blunt weapon within the duration of 24 hours.
14. As regards injuries on the person of Abdul Latif P. W., the doctor has opined that Injuries Nos. 4 and 5 were possible as the assailant was on his front. Regarding Injuries Nos. 1 and 2 on the person of Inayat appellant the doctor was of the opinion that they could possibly be caused by falling on the ground. In his opinion the death of Sultan deceased had occurred soon after the receipt of injuries I.e. Within half-an-hour.
15. The doctor on 4th of March 1974, also examined Abdul Ghani comp--lainant and found the following injuries on his person :-
(1) Complained of pain on the left shoulder blade
(2) Complained of pain in the front of chest ;
(3) A contusion on the right thigh back side 3" x 1---.
16. The injuries were simple in nature within 20 hours duration and caused with blunt weapon.
17. On the same day, the doctor examined Muhammad Sharif son of Jamal Din and found the following injuries on his person :--
(1) A contusion on the front of left chest with severe pain
(2) Complained of pain in the outer side of right thigh ;
(3) Complained of pain on the right buttock ; and
(4) Contusion with swelling on the left thigh back side.
18. All injuries were simple in nature and within twenty-hours and caused with blunt weapon.
19. Muhammad Latif son of Jalal Din was also examined by the doctor and following injuries were found on his person :--
(1) Contused wound on the right forehead 1--- x 4" x scalp deep ;
(2) An abrasion on the left leg in front 3" x 4--- x skin deep ;
(3) A contused wound on the left clavical bone, 1" x ----- x ----- ;
(4) A penetrating wound on the outer side of left thigh, close to left knee joint.
(5) 4--- below Injury No. 4, penetrating wound was found, ----- x ----- x going deep.
(6) A contusion on the right elbow joint.
(7) A contusion on the left scapula.
20. In the opinion of the doctor, the injuries were simple within 20 hours duration. The doctor opined that Injuries Nos. 4 and 5 were with sharp--edged pointed weapon. Exhs. P. F., P. G. And Exh. P. H, are true carbon copies of the medico-legal reports. The doctor on 4-3-1974 at 11 a. m., conducted post- mortem examination on the dead body of the deceased Sultan son of Abdul Ghani and found the following injuries on it
(1) Anincised wound above the right illic crest, 1----- x----- x going inward and upward.
21. Abdominal sorts was injured.
22. Abdominal wall, peritoneum were injured, 3 fluid points of clotted blood present in abdominal cavity. Small intestines were injured, stomach was healthy, and one oz. Of semi-digested food present. Large intestine full of faecal matter present and healthy. All other organs of the body were healthy.
23. In the opinion of the doctor, Injury No. 1 was ante-mortem caused by sharp pointed edged weapon and was dangerous to life. Death in his opinion was due to shock and haemorrhage as a result of Injury No. 1. According to the doctor this injury was sufficient to cause death in the ordinary course of nature. Exh. P. J. Is the correct carbon copy of the post-mortem report and bears the signatures of the doctor. Exh. P. J/1 is the diagram showing the location of injuries.
24. In his cross-examination, the doctor stated that there are no dimensions of Injuries Nos. 1 and 2 in respect of Abdul Ghani P. W. And there were no visible marks of injuries pertaining to these injuries.
25. In the opinion of the doctor, Injury No. 3 on his person cannot be self-suffered, and it is possible by falling on a hard surface. The doctor also stated that there were no visible marks of Injuries Nos. 2 and 3 in respect of Muhammad Sharif P. W. Injury No. 4, according to the doctor, could be caused by falling on the ground. The doctor stated that aj the injury is not properly visible therefore, he has not given its dimension.
26. Muhammad Khurshid Bibi was examined by Lady Doctor Zarina Iqbal who has proceeded to Libya and the medico-legal report Exh. P. Y., was proved by P. W. 12 Mst. Hajra Lady Dispenser, D. H. Q.
27. Hospital, Gujranwala. According to Exh. P. Y. Mat. Khurshid Bibi had following injuries on her person :-
(1) A bruise about 1----- x 1" over the left shoulder ;
(2) A bruise about 2" x 1", over the left hip ;
(3) An abrasion about 3" x over the back and outer part of lower third of right forearm.
(4) Small multiple abrasions on an area of about 2--- X 1-----.
28. In the opinion of the Lady Doctor, the injuries were simple, within 24 hours duration and caused by blunt weapon.
29. The case for tae accused-appellants is stated at page 53 by Muhammad Arshad in his statement, by Inayatullah at page 55, by Muhammad Munir at page 57, by Mst. Khurshid Bibi at page 64, while Amjad. Hafeez and Riaz Ahmad have denied their presence at the spot.
30. In view of the statement of the accused-appellants and injuries to five persons on the side of the accused, including Mst. Khurshid Bibi, aged 60 years, the issue involved here is very much narrowed down. Having gone through the record and examined the case minutely, we are of the opinion that the prosecution has exaggerated the version to make out a case of 302, P. P. C. And the case for the defence is nearer, though not wholly to the truth, as discussed below.
31. The case for the prosecution is supported only by the father of the deceased Abdul Ghani and his two brothers Muhammad Sharif and Abdul Latif. Muhammad Ashraf a close relative of the complainant though cited in the F. I. R. Has not been produced at the trial. The only independent witness Abdul Rashid (P. W. 7) at the trial has not supported the case for the prosecution and has gone all out to support the case for the defence for reasons known to him. He claims to be a tenant of the complainant. Before the Committing Court, he had supported the case for the prosecution with which be was duly confronted by the Public Prosecutor in cross--examination after permission of the Court, and the statement made by this witness before the Committing Magistrate has been transferred to the Sessions file under section 288, Cr. P. C. Since the witness has indulged in self- contradictions, we cannot place any reliance on his evidence and have to rule it out of consideration by way of abundant caution. The place of occurrence is situated in a populated area and as admitted by the complainant (at page 38, line 41) there are about 30/40 houses in the street near the place of occurrence and then at page 39, line 26, that neighbours came to the spot but could not name them ; and also by P. W. 8 Muhammad Sharif before the Committing Magistrate with which he was duly confronted at page 43, lines 44 to 51 that some neighbours including Mukhtar and Shamshad also came there. None of them has been cited as a witness, which raises a reasonable possibility that a false or at least an exaggerated version has been put forward by the com--plainant which the neighbours are not willing to support. The complainant owns a cotton dyeing factory while on the accused side all the adult members of the family were behind the bars. We feel that the sympathies of the Mohallahdars would have been on the side of the complainant and the neighbours would have been on the side of the complainant and they would have felt no hesitation in supporting his version if it was true. All the adult male members of the family being behind the bars is evident from the admission made by P. W. 9 at page 43, lines 17 to 22.
6. The truthfulness of the version as set up by the prosecution does not impress us at all as it is not corroborated by the number and nature of injuries found on the persons of the complainant side.
32. The case for the prosecution is that three persons armed with knives and with churri one with dang and one with fire-wood in a pre-determined manner came to attack, and the result we find is only one injury on the person of the deceased which is of the dimension 1----- X ----- and there is not even an allegation that an attempt to inflict more injuries was made, and the two sharp--edged injuries are on the person of Latif P. W., one on the thigh close to left joint described as `penetrated but it appears to be so insignificant that the doctor has not even noted the dimension, and the other 4" below this injury measured ----- x -----, both of them were simple. Latif in addition to these two injuries suffered five more simple blunt weapon injuries in the nature of two contusions, one abrasion and two contused wounds, the injuries on the person of Abdul Ghani and Muhammad Shafi P. Ws., are also insignificant as Abdul Ghani had a contusion on his right thigh on the back side measuring 3" x 1" besides he complained pain in the left shoulder and in front of his chest. Same is the case of Muhammad Sharif P. W. Who also complained pain in the right thigh, in the right buttock and the left side of chest. There was a swollen contusion on his left thigh. These simple injuries do not corroborate the version of pre-planned, pre-determined murderous assault by five young boys armed with four knives, one dang as alleged by the prosecution. Similarly, five accused have suffered blunt weapon simple injuries on their persons of about the same dimensions and same nature as that on the complainant side. If the accused side was armed as alleged the complainant party could not have inflicted even these blunt weapon simple injuries, more particularly the accused would not have permitted the complainant side to come near their mother Mat. Khurshid Bibi who had suffered injuries on her person including the one over her left hip and small multiple abrasions in an area of about 2" x 1----- over the front middle of fora. These injuries are suggestive of an incident, more in the nature of a street brawl or a street affray. The incident is being divided into two parts to aggravate the offence.
33. We are not satisfied with the explanation offered by the prosecution for the injuries suffered by the accused that these were caused in self-defence by brick-bats. The Thanedar had leached the place of occurrence at about 11 or 12 in the midnight. Had the complainant party used brick-bats in their defence, the same in a large number would have been found at the spot. This fact was put to the investigating officer at page 49, line 27, who has categorically stated that he did not see any pieces of stones or brick-bats at the spot and for that reason he did not make any mention in the inspection note nor in his report under section 173, Cr. P. C. Needless to mention that no brick-bats or stones were taken into possession and the question of preparing any recovery memo, does not arise.
34. Similarly, the story of snatching chhurri by Abdul Rashid P. W. 7 from Inayat accused does not appear to be true. Abdul Rashid has not supported this at the trial. He does not bear even a scratch on his palm or fore-arm which he was very likely to suffer in the process of snatching the chhurri from the accused.
7. The first information report also seems to be belated and recorded after some deliberations.
35. Though ex facie, it is shown to have been recorded at 8-30 p.m., at Police Post Watch Tower, but P.
36. W. 8 had stated before the Committing Magistrate that his statement and that of Abdul Ghani were recorded by the Thanedar after midnight with which position he was confronted at page 44, line 56 and we have it on record at page 39, line 40 that the S. I. Reached the spot at about 11 or 12 in the night which leads us to a reasonable inference that the F. I. R. Was recorded at the spot some time after 11 or 12 in the night. In this view of the matter, submission of the defence that after due deliberations a case had been set up exaggerating the incident to make out an offence of murder and a criminal trespass, is not wholly without force. We are also of the opinion that the recovery memo. Exh. P. C. Showing the blood to have been recovered from the courtyard of the factory is bogus as the recovery memo. Is dated 3-3-1974, and the attesting witnesses are Abdul Ghani and Muhammad Sharif, who according to the events narrated by the Sub-Inspector should be in the D.
37. H. Q. Hospital on the 3rd of March after meeting the S. I. And not at the spot to attest the recovery memos. On perusal of the statement of Muhammad Saeed Khan, S. I. On page 48, the picture that emerges is that being incharge of the Police Post Clock Tower, he was present there at 8-30 p.m., on 3-3-1974, when Abdul Ghani complainant, his brother Muhammad Sharif and others reached there along with the dead body. He recorded statement Exh. P. S., prepared the injury statements of Abdul Latif and Abdul Ghani and despatched the dead body to the mortuary for post-mortem examination and the witnesses to the hospital for medical report, where they were examined at 9- 15 a.m., on 4-3-1974.
38. The parties live in the same street close to each other. There is no background of previous enmity or any ill-will, though the State Counsel has referred us (page 39, line 3) to a sentence "prior to the occurrence there was a dispute between us and the accused Arshad, Inayat and Khurshid Bibi also." This sentence we feel has to be read with reference to the sequence of events stated in the cross-examination. In our opinion, this is reference to the incident of quarrel between the children alleged to have taken place at degar time. Otherwise there is no mention of anything of the sort in the F. I. R. Or anywhere else in the evidence.
8. Considering all the aspects we are of the opinion that with a view to introduce an element of premeditation a false colour has been given to the incident. It appears that children aged 5 or 6 years of Abdul Ghani complainant on the one hand and of Lal Din on other had quarrelled which attracted teenagers of both sides, as the parties live in the same street, whose intervention aggravated the situation resulting into a free fight which can more appropriately be described as street brawl or a street affray without any element of pre-concert, premeditation or pre- determination on either side.
39. Presence of Mst. Khurshid Bibi an old woman aged about 60 years negatives the prosecution stand point that it was I re-planned attack. This being the position each of the participants will be responsible for his own acts. We are also of the view that as there was only a single incident in the street or at best it started in the street and parties in the heat of the fight might have even, on some occasions, entered the factory courtyard it was not a cast of criminal trespass, we, therefore, acquit the appellants of the offence under section 452, P. P. C.
9. The case of Riaz appellant is extremely doubtful. The P. Ws. Are close relatives, the entire family has been roped in Riaz is not injured and no weapon is recovered at his instance, there is no other corroborative circumstance to connect him with the incident beyond reasonable doubt. Therefore, we allow his appeal and acquit him.
10. Muhammad Arshad and Amjad Hafeez appellants are attributed simple injuries with sharp- edged weapons. Accordingly, we find each of them guilty of the offence under sections 324/34, P. P.
40. C. For causing injuries to P. Ws. They are sentenced to one year's R. I. Each and a fine of Rs. 100 each.
41. In default of the payment of fine they will suffer a further rigorous imprisonment for one month each. Convictions of Amjad Hafeez and Muhammad Arshad under section 302, P. P. C. Are set aside. They are acquitted of this charge. Their conviction and sentences awarded under sections 452/34 and 307/34, P. P. C. Are also set aside.
11. As regards Inayatullah, he is attributed the only blow to the deceased. The same proved fatal. He did not repeat the blow to the deceased nor did he give any blow to P. Ws. If he had intended to cause greater harm to the deceased there was nothing to prevent him. He could have repeated the blows. As noticed above, there was no previous enmit between the parties and a petty quarrel over the children resulted in the unfortunate incident in which one human life was lost and persons on both sides including an elderly lady have received injuries. It is mantles therefore, that the incident was the result of a sudden flare-up without an intention or premeditation. In this view of the matter and following the principle laid down in Bahar Khan and 2 others v. The State (1972 P Cr.
42. L J 411) we set aside all the convictions of Inayatullah appellant I e., under section 302, P. P. C. And convict him under section 304, Part II, P. P. C. And keeping in view the period of detention during trial, he is sentenced to five years' R.I. And fine of Rs. 1,000 (Rupees one thousand only) or in default to further rigorous imprisonment for three months. The amount of fine if realised, willpaid to the heirs of the deceased as compensation. His death sentence is not accordingly confirmed. The appeal stands disposed of in the above terms.