MUSHTAQ HUSJAIAT, C. J.---Muhammad Ibrahim alias Fatafat son of Rehman, aged 65 years, his two brothers Babu and Rehmat, Khushi son of Siraj and Barkat son of Rahim Bakhsh were tried by learned Additional Sessions Judge, Sheikhupura, under sections 148, 307/149, 202/149, P. P. C. For having committed rioting on 13-31971 in village Gorayawala while they were armed with deadly weapons and formed themselves into an unlawful assembly, the common object of which was to commit rioting, to attempt the murder of Babu, Mst. Hassan Bibi and Shafi P. Ws. And to cause the death of Niaz Ali deceased.
2. By his order dated 5th of May, 1975, the learned Additional Sessions Judge, Sheikhupura, found Ibrahim guilty under section 302, P. P. C. For causing the death of Niaz Ali deceased and also for causing gunshot injuries on the persons of Babu, Mst. Hasan Bibi and Muhammad Shafi P. Ws.
Under section 324, P. P. C. On three counts. He convicted him of these offences and sentenced him to death and to pay a fine of Rs. 1000, and in default of payment to undergo further rigorous imprisonment for one year under section 302, P. P. C. Under section 324, P. P. C. He was sentenced to one year's rigorous imprisonment on the three counts already referred to above. The sentences were to run concurrently.
Babu, Rehmat, Barkat and Khushi Muhammad accused were acquitted.
3. The prosecution story is that Muhammad Ibrahim contested elections to the Basic Democracy against the maternal uncle of Babu, P. W. 11, in 1964. In the afternoon of 13-3-1971 just before the fatal occurrence Yasin aged 7 years son of Rehmat and Ashraf aged 10 years son of Barkat fought with each other: Jamal Din, P. W. 16, separated them. Ashraf is then said to have abused Jamal Din and returned to his own house.
4. This was followed by the congregation of Wali Muhammad, P. W. 14, Muhammad Din, P. W. 15, Muhammad Shafi, P. W. 7, Jamal Din, P. W. 16, and Niaz Ali deceased at the place of occurrence for unknown reasons. Ibrahim accused suddenly appeared at the scene armed with a gun accompanied by Babu and Rehmat sons of Rehman, Khushi Muhammad son of Siraj and Barket son of Rahim Bakhsh all armed with sofas. Ibrahim shouted a lalkara that they had come to have their matter settled and opened fire. They belaboured the P. Ws. While the appellant fired three shots.
5. The first hit Niaz Ali in the abdomen, the second hit the complainant on his right arm and the third hit Hassan Bibi (P. W. 13), Shafi a witness who was, not examined, and Muhammad Ishaq who was attracted by the hue and cry. Barkat, Rehmat, Khushi Muhammad and Babu belaboured Wall and Muhammad Din who were running for their lives.
6. Sadaqat Ali son of Ali Muhammad, Muhammad Sharif son of Daula and Imdad Ali son of Allah Rakha were attracted by the noise and intervened to save the lives of the victims. The accused ran away from the scene shouting lalkaras while the appellant went away with them firing shots in the air.
7. All the injured persons were being taken to the Mananwala Hospital when Niaz Ali succumbed to his injuries en route. The others proceeded to the hospital while Babu son of Phuman, P. W. 11, proceeded to the police station and lodged F. I. R. (Exh. P. A.) at 10 p. m. On the same night. The F. I. R.
Was recorded by Fazal Din, Sub-Inspector (P. W. 17).
8. Having recorded the F. I. R. The. Sub-Inspector prepared the injury statement of the complainant and sent him to the hospital for medical examination. He meanwhile received two ruqqas Exhs. P. G.
And P: H. From the Medical Officer of the Civil Dispensary, Mananwala, requesting him to take the injured persons and the dead body which had arrived at his dispensary to the District Headquarters Hospital, Sheikhupura, for medical attendance of the injured persons and post- mortem examination of the deceased, He was also requested to remove Barkat accused to the Civil Hospital Sheikhupura, As he was in a dangerous condition. The Sub---Inspector complied and went through the usual steps taken in investigation.
9. He proceeded .To the spat and found three empty cartridges Exh. P. 7/1-3 which he took into possession vide memo. Exh. P. B. He also took into possession various articles 'including shirt P. 14 vide memo Exh. P. R. Which belong to Babu anti which bore the marks of entry of the pellets frown the gunshot. He arrested Barkat accused on 14-3-1971, in the Hospital at Sheikhupura and Khushi Muhammad and Rehmat accused were arrested on 16-3-197). Khushi Muhammad got sofa P. 16 and Rehmat got sofa I'. 17 recovered the same day. Babu accused led to the recover of sofa P. 18.
10. Ibrahim being a proclaimed offender of Misri Shah Police Lahore and having been arrested by it, the Sub-Inspector took him into his custody from there. He got a SBBL '12 bore gun Exh. P. 19 recovered from a box in his room as well as a licence P. 20 for the same gun both of which were taken into possession. Having completed the investigation he challaned the accused.
11. At the trial, Ibrahim appellant denied all the allegations and claimed to be tried. The others followed suit. They were tried and Ibrahim was convicted and sentenced as mentioned above. He has filed an appeal and the case is also before us under section 374, Cr. P. C. This judgment shall dispose of both these matters.
12. The prosecution produced 17 witnesses in all in support of its case. The doctor Abdul Halim, Medical Officer of the Mananwala Dispensary (P. W. 15) proved the arrival of all the injured at his Dispensary, the giving of first aid and their transfer to the District Headquarters Hospital, Sheikhupura, for treatment.
13. Dr. Shafiq Ahmad (P. W. 21) found multiple gunshot injuries on the right arm of Babu. He also examined Muhammad Shafi who had a gunshot wound on the right abdomen above the anterior superior iliac spine.
14. He examined Muhammad Din son of Kalu and found a contused wound and two abrasions on his person. He also examined Wali Muhammad and found a contused wound bone deep on the right anterior top of skull. On examining Hassan Bibi he found a round wound of entry on the right side of chest, another on the same side and the third one on the left side of chest.
15. Dr. Shafiq Ahmad also performed the autopsy on the dead body of Niaz Ali and found multiple gunshot wounds on the whole of the abdomen and upper part of front of both thighs. The walls of the abdomen were punctured all over with gun shot. The peritonium suffered similarly as in the stomach and the small and large intestines. The liver was also punctured.
16. The medical evidence, therefore, supports the prosecutioncase in full.
17. Babu appeared as P. W. 11 and related the prosecution story faithfully. He gave the motive at the trial in the following words:- "The accused present in the Court are known to me. Babu, Rehmat and Ibrahim" alias Fatafat are real brothers and sons of Rehma. A sister of Khushi, Muhammad is married to Barkat accused but I do not know-if she is a real sister or a cousin of Khushi Muhammad. Khushi Muhammad accused is a tenant of Babu and other accused.
Ralla is my maternal-uncle and father-in-law. His father and his two brothers were originally residents of India and my maternal grand--father and one of his brothers migrated to Pakistan and had settled in my village Gorayawala. The land was allotted to my maternal-grand father and his brother regarding their own claim as well as regarding the claim of their third brother who had remained in India. Ibrahim accused had filed an application in the Settlement Department against my maternal-grandfather and his brother in this connection and got extra land allotted to them cancelled. This case went up to the High Court and the land cancelled could not be restored to them. In, the last B. D.Election my maternal uncle Ralla had contested the election against Ibrahim accused in which Ibrahim accused was defeated and Ralla was elected. Ibrahim accused had therefore, entertained grudge against us on account of the aforesaid events."
The testimony of this witness is supported in all details by that of Mehnga, P. W. 12, Hassan Bibi (injured). P. W. 13, Wali Muhammad (injured), P. W. 14, Muhammad Din (injured), P. W. 15 and Jamal Din P. W.
16. The injuries on their persons are glaring testimony of their presence at the spot that the occurrence took place. They have supported the prosecution story in all its details and despite lengthy cross-examination the defence was not able to elicit anything from these witnesses which could further advance the case even a bit.
18. Learned Counsel for the appellant who had started by saying that he was not going to urge that it was a case for acquittal made his submissions on the basis that it was 4: sudden fight and would be covered by section 300, fourthly. He relied upon Fazal alias Faja v. The State (1971 P Cr. L. J 602) in support on his submission. There is nothing common in the case cited and the facts proved before me. In the case cited it was observed at pages 606 and 607-- "Admittedly it was a sudden affair and the quarrel ensued which resulted into grappling. The appellant cannot be said to have acted in a cruel manner as he gave only one injury to the deceased. The injury on the person of Samundar Shah, as I have already said, was not intended, but he perhaps received it while intervening between the deceased and the appellant. It cannot be said that the appellant had acted in unusual manner. It would not be unnatural to assume that something more than exchange of abuses must have happened outside the hotel before the appellant brisked his knife on the deceased for it is known that the grappling had already taken place inside the hotel and both the deceased and the appellant were separated and held by the two different persons.---------------------------------------------------------------------- ----------------------------------------------------------------------------------------- ------------------------------------------.
Be that as it may, it cannot be said to be a pre-meditated murder. The fight in this case clearly seems to be sudden and what had happened was the result of heat of passions."
19. How different were those facts from the ones found in the case before us. Here nobody admitted it to be a sudden affair, the fight which' had taken place earlier between the two your, boys vas a clear proof of motive: The manner in which the accused arid his companions came arm If with lethal weapons and shouting lalkaras, the gravity of the injurief inflicted, and the use of a fire-arm point not to a sudden fight but to a premeditate murder. This ruling is, therefore, not attracted to the facts of this case.
20. Mr. Qadri then adverted our attention to Muhammad Munnawar and 3 others v. The State (1974 P Cr. L J 489). In that case also as is observed at page 193:-- "However from a perusal of their testimony it appears that a sudden fight had broken out between the parties which started with the exchange of abuses. Iqbal P. W. Bad stated that he and Rehmat Ali P. W. Were annoyed and provoked on reaching their house and on seeing their women being abused by the appellants.
According to the medical evidence out of these injuries only one was grievous whereas the rest were simple. According to the medical evidence had the deceased been given necessary medical aid, there were chances of his survival . . . . . . . ."
In those circumstances it was quite clear that it was a ease of sudden fight and it is equally clear in the circumstances of the case before us that it is not a sudden fight as has already been indicated above.
21. The medical evidence, the evidence of motive and the testimony of ocular witnesses in this case leave, no manner of doubt that Muhammad Ibrahim appellant is guilty of the offence with which he had been charged and convicted by the learned Additional Sessions Judge and we confirm the conviction.
22. As for the sentence, although nothing could be said against it a the time when it was awarded but we now take into consideration the fact that Muhammad Ibrahim is 70 years of age, is suffering from tuberculosis and has failing health. In these circumstances we are convinced that the ends of Justice would be met by converting the sentence of death into one for life imprisonment during which he shall be kept in the tuberculosis ward till such time as he is relieved of that disease. We consequently accept the appeal only to the extent indicated above and decline to confirm the sentence of death.