Muhammad Farrukh Mahmud, J.--This judgment will dispose of Criminal Appeal No. 1509 of 2001 filed by Bashir Ahmad and Ghulam Ali, who were convicted and sentenced by the learned Additional Sessions Judge, Okara, in case F.I.R. No. 374, registered at Police Station Saddar Renala Khurd, District Okara, on 4-7-1998, for offences under Sections 302/34/337- A(i), (ii)/337/F(i), (iii), P.P.C., vide his judgment, dated 29-9-2001 as under:- (A)(1) Bashir Ahmad Death with compensation of Rs. 1,00,000 or in default six months' R.I. under Section 302(b), P.P.C.
(2) Ghulam Ali Life with compensation of Rs. 1,00,000 or in default six months' R.I. under Section 302(b), P.P.C.
(B)Five years' R.I. to both the appellants with Daman amounting to Rs. 2,000 under Sections 337- A(i), (ii) and 337-F(iii), P.P.C.
Murder Reference No. 648 of 2001 for confirmation or otherwise of death sentence of Bashir Ahmad-appellant and Criminal Revision No. 826 of 2001 filed by Master Ghulam Nabi seeking enhancement of sentence and fine inflicted upon the respondents, shall also be disposed of through this single judgment.
2. Brief facts of the case, per F.I.R. lodged by Master Ghulam Nabi complainant (P.W.4) are that he was resident of Chak No. 15/1-L. In the same street near his house Ghulam Ali son of Channan also resided with his family. On 2-7-1998 sons of the complainant namely. Liaqat Ali and Nasir Mahmood were throwing earth with their Trolley in the street. Ghulam Ali, Bashir Ahmad and others forbade them from doing so, therefore, altercation took place between the parties. Ghulam Ali and Bashir Ahmad threatened that if they would throw earth in the street, somebody would be murdered and as they had abused them they would take revenge of it. On the next day i.e. 3-7- 1996 at about 6-00 p.m., Liaqat Ali, Nasir Mahmood, Ghulam Nabi complainant were coming back from their fields. When they reached near the main gate of their house they saw that Ghulam Ali, Bashir Ahmad alongwith Mst, Begum Bibi and Mst. Azizan Bibi were sitting in the street outside their house. Ghulam Ali, Bashir Ahmad and others raised Lalkara that they would not leave them alive today. Ghulam Ali and Bashir Ahmad armed with Dangs, while Mst. Begum and Mst. Azizan armed with Thapas attacked upon the complainant party. Bashir Ahmad and Ghulam gave many Dangs blows on the head of Liaqat Ali, who fell down. Both of them also caused injuries to Nasir Mahmood.
When the complainant tried to rescue his sons, Mst. Begum and Mst. Azizan attacked upon him with their Thapas. On hearing hue and cry Mst. Nasira Pervin daughter of the complainant came out of the house. Mst. Begum and Mst. Azizan also injured her. It is also mentioned in the F.I.R. that during scuffle the accused also received scratches. Noise of fight attracted Muhammad Sarfraz and Abdul Wakeel to the place of occurrence, who witnessed the incident. Meanwhile other people of the Chak also reached there. The accused fled away from the scene of occurrence. Thereafter the complainant alongwith Muhammad Shahid and Muhammad Sadiq P.Ws. shifted all the injured on a trolley to the Hospital Renala Khurd. All the injured were admitted in the hospital, but due to the serious condition of Liaqat Ali the doctor referred him to General Hospital, Lahore, where Liaqat Ali succumbed to the injuries.
3. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Aslam, S.-I./P.W.12. 'He proceeded to General Hospital, Lahore, where the dead body of Liaqat Ali was lying. He took over the dead body and prepared inquest report Exh.P.C. Thereafter he inspected the place of occurrence and prepared site-plan Exh.P.W. of the place where the deceased and the P.Ws: were injured. On 12-7-1998 he arrested Bashir Ahmad, Ghulam Ali and Mst. Begum. He also recorded cross-version on 4-7-1998 on the basis of written application Exh.P.X. While in custody, Bashir Ahmad led to the recovery of Sota (Dang) P.I from his house, which was taken into possession vide memo. Exh.P.G. On the same day Ghulam Nabi also led to the recovery of Sota P.2 from his house, which was taken into possession vide memo. Exh.P.H. After completion of investigation, the accused were sent up to face trial.
4. At the trial, the prosecution in order to prove its case produced 12 witnesses in all and closed its case. The accused in their statements recorded under Section 342, Cr.P.C.' took a similar defence plea, which is being reproduced:- All the P.Ws. are inter se related. There are drains for waste water in our village on both sides of street. We used to tie our buffalo in front of our house and also used to wash our buffalo in the street. We had dispute with the complainant party on the washing of buffalo. On 3-7-1998 at Digarwela Begum Bibi my wife was washing the buffalo in the street. Rashida Bibi and Nasira Perveen abused her, Begum Bibi my wife replied in the same language. Rashida and Nasira Perveen replied that our men should come back, they will teach lesson for washing the buffalo.
There is soling on the street. On the same day, at Shamwela Ghulam Nabi. alongwith Nasir, Liaqat, Nasira and Rashida armed with Sotas came at our door and started abusing to -me and my wife.
Begum Bibi and I came out of the house and forbade to them for abusing. Ghulam Nabi has raised Lalkara to teach the lesson of abuses and Nasir Mahmood caused injury on the head of me with Sota then I fell down and Nasira Perveen accused gave Sota blow on the head of Begum Bibi my wife who also fell down. After that they all caused injuries on my person. On hearing our noise Bashir came and raised hue and cry, Ghulam Nabi shouted at Bashir then Liaqat gave a Sota blow on the head of Bashir. In order to defend Bashir himself and to us snatch the Sota from Liaqat Ali, then Liaqat Ali tried to run towards his house in order to bring another crime weapon and collided with a trolley and fell down on the ground and received the injuries. Then Ghulam Nabi, Nasir, Nasda and Rashida again caused injuries on the person of Bashir, Ghulam Nabi and Nasir suffered injuries during this scuffle.,In fact, the complainant party was the aggressor and caused injuries on our person. Bashir caused minor injuries on the person of Nasir P.W. and Ghulam Nabi P.W. in order to save.his and our lives. Sarfraz and Abdul Majeed P.Ws. were not present at the place of occurrence at the time of occurrence nor Abdul Majeed P.W. caused any injury to us. Liaqat and Nasira Perveen did not receive any injury from us. Gohar Ali moved an application for registration of case but our case was not registered and police registered a case against me and my co- accused with collusion. After that our cross-version was registered against the prosecution party."
They did not appear as witness under Section 340(2), Cr.P.C. However, the appellants after placing on record copy of complaint filed by Gohar Ali against complainant party Exh.D.I. statement of Gohar Ali recorded in complaint .case Exh.D.J., statement of Mst. Begum Bibi Exh.D.K. and statement of Bashir Ahmad Exh.D.L. closed their case, After conclusion of trial the appellants were convicted and sentenced as stated above.
5. After having read the entire prosecution evidence, statements of the appellants recorded under Section 342, Cr.P.C. and other relevant material available on record, the learned counsel for the appellants in support of this appeal submits that the P.Ws. have suppressed the injuries caused to the accused party willfully; that the defence plea was borne out from the circumstances of the case and was more plausible; that the F.I.R. was lodged with considerable delay after due deliberations; that S. H.O. with dishonest intention did not register the case at the instance of Ghulam Ali; and that in the alternate, the act of the appellant fell within the ambit of Exception 4 of Section 300; P.P.C. (old). He relies upon the case of Ali Muhammad v. Ali Muhammad PLD 1996 SC 274.
6. The learned counsel appearing on behalf of the State submit that the presence of the witnesses could not be denied because they received injuries during occurrence; that it was the accused/appellant who launched criminal assault upon the complainant party while they were sitting in front of their house; that the ocular account is fully supported by the medical evidence and corroborated by the circumstances of the case; that the prosecution has successfully proved its case. They support the judgment passed by the learned trial Court.
7. We have heard the learned counsel for the parties at length and scanned the entire record carefully. The complainant party and the accused were neighbours. Their houses were separated by a street running in between. No or enmity existed between the parties prior to occurrence.
According to the prosecution version altercation took place over throwing of earth by the complainant party on the street in front of their house. While according to defence version the occurrence took place over tethering of buffaloes in front of the house of the accused and washing of buffaloes in the street. It was stated by the P.Ws., who are related inter se, that the appellants alongwith Mst. Begum, who is mother of Bashir Ahmad and Mst. Azizan launched criminal assault on the complainant party. Ghulam Ali and Bashir Ahmad appellants were shown to be armed with Dangs, while Mst. Begum and Mst. Azizan (acquitted co-accused) were shown to be equipped with Thapas (Wooden instrument used of washing cloths). Resultantly, Ghulam Nabi complainant his son Nasir Mehmood, his daughter Nasira Pervin and Liaqat Ali received injuries. In F.I.R. it was mentioned that accused received minor scratches. In his statement before the learned trial Court the complainant improved his statement by stating that Abdul Majeed P.W. (not produced) in order to save life of complainant party snatched Dang from Ghulam Ali and, gave two blows on him. He further stated that Mst. Begum also suffered Dang blow. In other words the complainant owned only thee blows and not a single injury on the person of Bashir Ahmad. On the contrary Nasir Mehmood P.W.5 stated that Ghulam Ali and. Bashir Ahmad appellants and Mst. Begum (acquitted co-accused) did not receive .any injury during occurrence. Mst. Nasira Pervin P.W. 6 on the same point stated that she did not know the number of injuries caused on the person of the accused. She denied that the accused received injuries at the hands of the complainant party during occurrence. According to medical evidence four persons including deceased from complainant party received 16 injuries in total, while Bashir Ahmad, Ghulam Ali and Mst. Begum received 12 injuries in total. The injuries included head injuries on all the three. These injuries were suppressed by the P.Ws., while Ghulam Nabi mentioned only three injuries, which were attributed to Abdul Majeed. The 'rest of the witnesses denied that the accused suffered any injury during occurrence.
The witnesses have obviously tried to minimize their roles. However, the injuries on the person of the accused are proved through the medical evidence.
8. Dr. Wajid Ali P.W.11 examined all the injured from complainant party as well as from the accused side on the date of occurrence. At 9-25 p.m. he examined Liaqat Ali, who had received four injuries and died later. Mst. Nasira Pervin P.W. received four injuries.. Ghulam Nabi complainant received three injuries and Nasir Mehmood P.W. received five injuries. On the same day he also examined Bashir Ahmad appellant, who was brought by the police and he found four injuries on his person.
Injuries Nos. 1 and 2 were on the head. On the same day at 9-45 p.m. he examined Ghulam Ali appellant and found five injuries on his person. Injury No. I was on the head.
'Thereafter he examined Mst. Begum wife of Ghulam Ali appellant, who had received three injuries on her person. InjuryNo. 1 was on the top of head. All the injured were taken to the doctor by the police. During cross-examination he admitted that the copies of all the Medico-legal Reports Exhs.P.K., P.L. and P.M. were received by Muhammad Aslam S. H.O./P.W.12. The medico legal reports of Bashir Ahmad Exh.P.M., Ghulam Ali Exh.P.P. and Mst. Begum Exh.P.Q. reveal that they were taken for medical examination by the police through Arshad, Constable No. 471. The number and date of police docket have also been mentioned in the relevant columns of the Medico-legal Reports. All the three were examined at 9-45 p.m. on the date of occurrence.
It clearly shows that the police was very well in knowledge of the occurrence by 9-00 p.m., still the case was not registered till 10-30 a.m. on the next date. It shows dishonesty of Muhammad Aslam S. H.O./P.W.12, who deliberately did not register the case at the instance of either of the parties. It was admitted by Ghulam Nabi complainant that on the same day Gohar Ali son of Ghulam Nabi appellant had moved application for registration of cross- case at the police station. Dishonesty of Muhammad Aslam S. H.O. is also apparent by the statement of Mst. Nasira Pervin P.W.6 before the learned trial Court, according to which, statements of all the witness 4s including that of complainant were recorded oil 4-7-1998 in the evening at the place of occurrence. This deliberate delay in recording the F.I.R. would adversely affect the prosecution case.
9. In the above noted circumstances, it is obvious that the occurrence did not take place in the manner as stated by the P.Ws. They have exaggerated the role of the accused and have minimized their roles. 12 injuries on the person of the accused have not been explained at all Muhammad Hayat, Inspector/P.W.9 admitted before the learned trial Court that according to his opinion the quarrel arose over washing of buffaloes by the accused party. Ashiq Ali, S.-I./P.W.7 admitted that the place of throwing of earth was not shown in the site-plan. It appears that the altercation took place between the womenfolk and then the situation worsened and the parties caused injuries to each other.
10. The facts of the case attract the provisions of Exception 4 of Section 300, P.P.C. (old), which can be, looked into and referred to as laid I down by the Supreme Court of Pakistan in the case of Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274.
11.The end result of the whole discussion is that we alter the conviction of both the appellants from offence under Section 302(b), P.P.C. to offences under Section 302(c), P.P.C. Bashir Ahmad appellant was arrested on 12-7-1998 and is in jail since then. He has spent more than eight years in confinement. While bail. order of Ghulam Ali appellant dated 23-12-2003 passed during pendency of appeal reveals that he was 85 years of age with I very weak health and weak eyesight. His sentence was suspended after he had served out 2 years 5 months and 25 days in jail. In these circumstances, sentence of both the appellants is reduced to the period already served out by them in jail, as the same would meet the ends of justice.
12.The conviction of both the appellants recorded for offences under Sections 337-A(i), iii) and 337-F(i), (iii), P.P.C. is set aside.
13.Bashir Ahmad would be released from jail forthwith, if not required in any other case. Ghulam Ali appellant is on bail his bail bonds are cancelled and the sureties are hereby discharged.
14.The order passed by the learned trial Court under Section 544-A, Cr.P.C. is set aside, as both the parties had received serious injuries. Reliance is placed on the case of Mairaj Begum v. Ejaz Anwar and others PLJ 1982 SC 435.
15.Death sentence awarded to Bashir Ahmad is not confirmed. Murder Reference is answered in the negative.
16.For the above noted reasons, we find no merit in the revision filed by Ghulam Nabi/complainant against respondents Bashir Ahmad and Ghulam Ali. As far as the revision against Mst. Begum and Mst. Azizan (acquitted co-accused) is concerned, the same is not- maintainable, hence dismissed.