' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No,564 of 2000 and the Criminal Appeal No,530 of 2000 filed by Ghulam Abbas-complainant seeking conviction of the respondents namely Abdul Sattar, Jabbar, Nawaz and Qasim under sections 302(b)/149, P. P. C .
2. Vide judgment dated 31-8-2000 handed down by Mr. Muhammad Nawaz Bhatti, Additional Sessions Judge, Jampur, Camp at Rajanpur, Abid Hussain (absconded accused) was convicted under sections 302(b)/149, P.P.C. And sentenced to death with compensation of Rs,50,000 to be paid to the legal heirs of the deceased in default six months imprisonment. Abdul Sattar, Jabbar, Nawaz and Qasim/respondents were convicted under section 148, P.P.C. And sentenced to two years R.I. Qasim and Nawaz (absconders) were convicted under sections 337-F(v)/149, P.P. C . And sentenced to three years' R.I. Jabbar was convicted under sections 337(v)1149, P.P.C. And sentenced to three years' R.I. Abdul Sattar-respondent along with Nazik were convicted under sections 337- A(i)/ 149, P.P.C. And sentenced to two years R.I. All the accused were directed to pay compensation of Rs,10,000 each, to each of the injured.
3. Brief facts of the case as narrated in F.I.R. Exh.P.I lodged by Ghulam Abbas P.W.3 are that on 7-3- 1997 at 2-30 p.m. He along with Mulazim Hussain deceased, Imdad Hussain, Allah Dad P.W.9, Abdul Ghani P.W.4 and Sabir Hussain P.W.7 started from Basti Channar towards Pacca Road leading to Charagh Shah on eastern side after offering Jumma Prayer. When they reached on Katcha Road of Isran, Mulazim Hussain deceased and Abdul Ghani P.W.4 proceeded towards northern side of the Katcha Road in order to go to Basti Ahmdani. They had reached at a short distance when from the northern side Abid Hussain accused armed with .12 bore gun, Abdul Sattar accused armed with pistol .12 bore, Qasim, Nawaz, Jabbar and Nazik all the four accused armed with Sotas came. Abid Hussain accused raised Lalkara at Mulazim Hussain that they would take revenge of their insult today. Mulazim Hussain deceased raised hue and cry. The complainant along with Imdad Hussain, Allah Dad P.W.9 and Sabir Hussain P.W.7 ran towards Mulazim Hussain. Within their sight, Abid Hussain with his .12 bore gun opened a fire at Mulazim Hussain which hit upon the right side of his chest as a result of which Mulazim Hussain deceased fell down on the ground. Thereafter, Abdul Sattar with his .12 bore pistol fired at Abdul Ghani P.W.4 which hit upon the left side of his elbow.
Then, Qasim and Nawaz accused with their Sotas inflicted blows upon Abdul Ghani which hit upon his wrist of left arm and Daula. Then, Nazik Hussain with his Sota inflicted blow on Abdul Ghani which hit upon his head who fell down. Sabir Hussain P.W.7 stepped forward who was given Sota blow by Jabbar accused upon the left wrist of his hand. In the meanwhile, Abdul Majeed P.W.8 came to the aid of the complainant party who along with Sabir Hussain P.W.7 gave Sota blows to the accused party to save and help the complainant party as a result of which Abdul Majeed P.W.8 was also injured. The complainant, Imdad Hussain P.W. And Allah Dad P.W.9 attended Mulazim Hussain deceased who had expired due to fire.
4. The motive behind the occurrence is that day before yesterday prior to the occurrence, Abid Hussain accused etc. Had injured tractor driver of Ghulam Ali who is relative of the complainant and one day prior to the occurrence Mulazim Hussain deceased had admonished Abid Hussain accused and that all the accused armed with various weapons in prosecution of their common object fired at Mulazim Hussain deceased, Abdul Ghani, P.W.4 and injured Sabir Hussain and Abdul Majeed.
5. After registration of case, Malik Amir Ahmad, Inspector/S.H.O. (P.W.14) proceeded to the place of occurrence, prepared injury statement of Mulazim Hussain-deceased Exh.PP/1, inquest report of the deceased Exh.PP/2 and sent the deadbody to the mortuary. He took into possession blood-stained earth from the place of occurrence vide memo. Exh.PR. He also took into possession empty cartridge P.12 from the place of occurrence vide memo. Exh.PS. He prepared rough site-plan of the place of occurrence Exh.PA/3, injury statement of Sabir Hussain P.W.7, Exh.PB/3, injury statement of Abdul Ghani P.W.4, Exh.PC/3, injury statement of Abdul Sattar accused Exh.PD/1, injury statement of Nawaz accused Exh.PE/1, injury statement of Nazik accused Exh.PF/1 and injury statement of Abid Hussain accused Exh.PG/1. P.W.14 also took into possession last worn clothes of Mulazim Hussain deceased vide memo. Exh.PH. Nazik, Nawaz, Abdul Sattar and Abid Hussain were arrested on 8-3- 1997. While in custody Qasim, Jabbar, Nawaz and Nazik led to the recovery of Sotas, which were taken into possession vide memos. Exh.PJ, Exh.PK, Exh.PL and Exh.PM. On the same day, at the instance of Abdul Sattar accused pistol P.9 and cartridge P.10 were recovered vide memo. Exh.PN.
He also recovered .12 bore gun P.11 from Abid Hussain vide memo. Exh.PO. After completion of the investigation, all the three accused were sent up to face trial.
6. At the trial, prosecution in order to prove its case produced 14 witnesses in all, thereafter, learned Special Public Prosecutor tendered in evidence reports of Serologist Exh.PR, Chemical Examiner Exh.PR/1 and that of Forensic Science Laboratory Exh. PS, then the accused in their statements recorded under section 342, Cr.P.C. Pleaded false implication. After conclusion of the trial, the accused were convicted and sentenced as mentioned above.
7. We have heard the learned counsel for the parties and gone through the entire record of the case.
8. According to prosecution case, seven accused while armed with Guns, Pistols, and Sotas caused death of Mulazim Hussain and also injured Abdul Ghani, Sabir and Abdul Majeed, while four persons from the accused were also injured in the occurrence. Abid Hussain (absconder) was convicted under sections 302(b)/149, P.P.C. And sentenced to death. Murder Reference has been sent to this Court for confirmation of his death sentence, while Qasim and Nawaz are also proclaimed offenders. Both were convicted under sections 337-F(v)/149, P.P.C. And sentenced to imprisonment for three years R.I. Remaining four accused namely Abid Hussain (absconder); 'Nawaz (absconder), Abdul Sattar and Nazik were also injured. They were medically examined by the same Doctor who had examined the prosecution witnesses. The name of doctor is Dr. Abdul Rehman (P.W.1). There are in all ten injuries on the side of the accused party and nine injuries on the side of complainant party. Deceased in this case is Mulazim Hussain, who had received only one firearm injury at the hands of Abid Hussain (absconder). One fire caused by Abdul Sattar hit on the left forearm of Abdul Ghani. In our view it is a case of free fight and everybody will be responsible for the act done and role played by him during occurrence. Abid Hussain had caused only one injury. He was also injured though the passing reference has been given in the first information report that Abdul Majeed also received injury during occurrence at the hands of the complainant party. The version of the complainant cannot be considered as a gospel truth. In reply to the question why this case against you, Abid Hussain submitted that due to enmity. While, relying upon the case of Syed Ali Bepari v. Nibartan Mollah and others (PLD 1962 SC 502), were are of the view that both the parties have suppressed the real facts of the occurrence. Abid Hussain has not repeated the injury so it is not a case of death sentence, thereafter, the sentence of Abid Hussain is altered into life imprisonment with benefit of section 382-B, Cr.P.C. He is absconder, whenever he is taken into custody, he will be sent to Jail to serve out his sentence. Death sentence is not confirmed and the Murder Reference is answered in the negative.
9. As far as the appeal seeking conviction under sections 302(b)/149, P.P.C. against respondents is concerned, the learned Judge was not right in convicting the respondents under section 148, P.P.C., as it was a free fight, thus, the sentence is set aside. The remaining accused whenever are arrested, they would be sent to Jail to serve out their sentence. With the above observation, this appeal is dismissed.