' HASNAT AHMAD KHAN, J.--- Appellants namely Muhammad Iqbal, Abdur Rehman, Riaz Ahmad and Amir Muhammad were tried by the learned Additional Sessions Judge, Layyah for committing the murder of Ghulam Hashim and causing injuries to Ghulam Hassan complainant on the basis of F.I.R. No,80, dated 13-4-2000 registered at Police Station Saddar Layyah in respect of offences under sections 302/ 337-L(ii), 337-A(ii)/148/149, P.P.C. After the conclusion of the trial, vide judgment, dated 22-12-2001 passed by the said Court all the appellants were convicted under section 148, P.P.C. And sentenced to three years' R.I.; all the appellants were further convicted under section 337-A(ii) read with section 149, P.P.C. And sentenced to five years each R.I. And each of them was ordered to pay Rs,20,000 as Arsh, which in case of recovery was made payable to Ghulam Hassan injured P.W. All of them were further convicted under sections 337-L(ii)/149, P.P.C. Also and sentenced to two years' R.I. Each. Barring Muhammad Iqbal the remaining three appellants were acquitted of the charge under section 302, P.P.C.
' Vide the same judgment, Muhammad Iqbal appellant was convicted under section 302, P.P.C. Also and sentenced to imprisonment for life with a fine of Rupees two lacs, which in case of recovery was ordered to be paid to the legal heirs of the deceased. All the sentences awarded to the appellants were ordered to run concurrently. However, the benefit of section 382-B, Cr.P.C. Was granted to all the accused-appellants. Challenging their conviction and sentence the appellants have filed the instant appeal.
2. Shorn of unnecessary details, the prosecution story as narrated in the F.I.R. Exh.P.B. Lodged at the instance of Ghulam Hassan, P.W. Is that on the fateful day, at about Maghribwela, while the complainant and his son Ghulam Hashim were present in their house, Muhammad Iqbal armed with hatchet, Abdur Rehman, Riaz Ahmad, Muhammad Amir appellants and Sajjad Hussain alias Kali (tried separately being Juvenile) armed with Sotas arrived there and after raising Lalkara launched an assault during which Muhammad Iqbal allegedly caused a blow on the head of Ghulam Hashim (deceased) with the wrong side of hatchet. Abdur Rehman, statedly, caused a blunt weapon injury on the back of Ghulam Hashim. On the interference of the complainant, Sajjad alias Kali (co-accused) reportedly caused blunt weapon injury on his head while Riaz appellant allegedly caused a Sota blow which landed on the shoulder of the complainant. Amir appellant allegedly caused blunt weapon, injuries to the complainant as well as Ghulam Hashim (deceased).
The apple of the discord was stated to be that goats of the accused party had damaged the vegetable crop of the complainant party, due to which exchange of hot words ensued between the women-folk of both the parties. Initially the case was registered under sections 324/ 337-L(ii)/337- A(ii)/148/149, P.P.C. But after the death of Ghulam Hashim (deceased) on 14-4-2000, section 302, P.P.C. Was substituted.
3. As mentioned above, on the statement of Ghulam Hassan complainant P.W.3, the case was registered by Ghulam Abbas, S.-I. (P.W.6) who thereafter proceeded to the place of occurrence and initiated the investigation. After inspecting the spot the said Investigating Officer prepared rough site plan Exh.P.K. And after recording the statements of the witnesses under section 161, Cr.P.C., collected bloodstained earth vide recovery memo. Exh.P.C. On the receipt of information regarding the death of Ghulam Hashim he proceeded to Nishtar Hospital and got the autopsy on the corpse of Ghulam Hashim conducted, whereafter he took into possession the blood-stained clothes of the deceased, vide Exh.P.A. And then prepared inquest report and injury statement as Exhs.P.L. And P.M.
Respectively. On 23-4-2000 he arrested all the accused and statedly got recovered the weapons of offence from the accused vide Exh.P.D. Exh.P.E., Exh.P.F., Exh.P.G. And Exh.P.H. After completing the investigation he submitted report under section 173, Cr.P.C. Sajjad alias Kali was found to be juvenile and he was tried separately.
4. During the trial, the prosecution came forward with eight witnesses to prove its case. Saeed Ahmad, who had identified the dead body of Hashim appeared as P.W.1. He proved factum of recovery of last-worn clothes of the deceased, Hashim, which were taken into possession vide recovery memo. Exh.P.A. Muhammad Umar Head Constable had appeared as P.W.2 and deposed about receipt and despatch of parcels of blood-stained earth to the office of the Chemical Examiner. Ghulam Hassan entered into the witness box as P.W.3 and furnished the ocular account.
Zulfiqar Ali stepped into the witness-box as P.W.4 and gave the ocular version besides venturing to prove recoveries of weapons of offence at the instance of the appellants Muhammad Siddique, Patwari, who had prepared the site plan Exh.P.J. Was produced, into the witness-box as P.W.5 while Ghulam Abbas, S.-I. Who had investigated the case came forward as P.W.6. Medical evidence was provided by Dr. Muhammad Aslam, who had appeared as P.W.7. Lastly Kaleem Ullah constable appeared as P.W.B. After tendering the report of the Chemical Examiner as Exh.P.Q. The learned D.D.A. Closed the prosecution evidence, whereafter all the accused-appellants were examined under section 342, Cr.P.C. In reply to the question No,8 Muhammad Iqbal appellant replied as under:-- "P.Ws. Are related inter se. They are also related to the deceased and are inimical to us. I and my other co-accused were not present at the place of occurrence. Occurrence took place in front of the house of the accused Abdul Rehman. Women-folk.Of complainant gave abuses to my sister Mst. Aisha as a result of which our women also abused the mother and father of Hashim deceased which provoked Hashim and he came to the house of Abdul Rehman accused to teach lesson to our women-folk. His father Ghulam Hassan complainant also followed him. Both of them tried to give beating to our women-folk who in- return injured them by Sotas and brick bats. Our women were closely related to the complainant and injuries sustained by the deceased and the complainant were apparently of minor nature. Due to which firstly they did not get register case against the women. As condition of Hashim became precarious, complainant got registered false case against myself and other male members of my family. This F.I.R. Was lodged at a belated stage after consultation, deliberation and concoction. Recoveries are fake. I am innocent. Motive is concocted."
' The other appellants toed the line of Muhammad Iqbal during their statements made under section 342, Cr.P.C. None of the accused appellants opted to appear under section 340(2), Cr.P.C.
5. After the conclusion of the trial all the appellants were held guilty and sentenced as narrated above.
6. In support of this appeal learned counsel for the appellants has contended that prosecution had miserably failed to prove its case against the appellants. He adds that in fact the occurrence was a result of a sudden flare up which had ensued after the exchange of hot words between the ladies of the two sides, whereupon Hashim (deceased) and Ghulam Hassan complainant P.W.3 had followed the ladies of the accused side and had tried to thrash them who in turn caused injuries to them by sticks and brick bats. He further adds that the defence plea being more probable, merits acceptance. On the basis of the above raised points he has prayed for acquittal of all the appellants. In the alternative, learned counsel for the appellants has contended that Muhammad Iqbal appellant has wrongly been convicted under section 302(b), P.P.C. According to him in fact, he could have at the most been convicted under section 302(c), P.P.C. White elucidating his arguments he has contended that as a matter of fact it was a case of sudden flare up iris which according to the prosecution's own version Iqbal appellant had only caused one injury and that too with the wrong side of hatchet, whereafter he had avoided to repeat the blow. He has further explained that the use of hatchet from its wrong side by Muhammad Iqbal, appellant, non- repetition of the blow on his part coupled with the medical evidence makes it crystal clear that there was no intention on his part to murder the deceased.
' As far as Muhammad Amir, Abdur Rehman and Riaz appellants are concerned learned counsel for the appellants has contended that the allegation qua them is not corroborated by' medical evidence and, therefore, they are entitled to acquittal.
7. Conversely learned State counsel has opposed the appeal on the ground that prosecution has proved its case to the hilt against all the appellants. Adds that in presence of the injured P.W. There is no room for acceptance of the appeal.
8. Heard. Record perused.
9. I have mulled over the arguments advanced by both the parties, the result of which leads me to conclude that as far as the prayer of acquittal of Iqbal appellant is concerned, the defence plea does not touch my sense of appreciation, inasmuch as prosecution case is supported by evidence of injured P.W. The defence plea raised by Muhammad Iqbal appellant cannot be accepted for more than one reason. Firstly he had failed to appear as his own witness; secondly he had failed to produce any of his women-folk who according to the defence plea had caused injuries to the deceased as well as the complainant, in their self-defence. Consequently, the prayer of clean acquittal of Muhammad Iqbal appellant is turned down.
10. However, the contention of the learned counsel for the appellant to the effect that Muhammad Iqbal appellant could only be convicted under section 302(c) has got some merit and therefore, same cannot be brushed aside. To hold so, I have got more than one reason. Admittedly there was no long standing enmity between the parties. According to the prosecution the occurrence had taken place due to the antipathy which occurred due to the fact that vegetable crop of the complainant party was damaged by a flock of goats of the accused party, which resulted in the exchange of hot words between the women-folk of both the parties. Admittedly the parties are related inter se. It is also an admitted fact that houses of Abdur Rehman and Riaz appellants are situated quite near to the house of the complainant. It is also an admitted fact that Mst. Aisha, sister of Iqbal, Abdur Rehman and Riaz appellants was married to Muhammad Ramzan (a close relative of complainant) and had obtained divorce from him. In the backdrop of the said estrangement she was in the habit of abusing the complainant party. This fact was duly admitted by Ghulam Hassan P.W. During his cross-examination. P.W.5 who had prepared the site plan, during his cross-examination had candidly admitted that no vegetable crop was cultivated near the house of the complainant, which had been constructed on a sand dune. While appearing as P.W.6 Ghulam Abbas S.-I. Who had investigated the case admitted that women-folk of the parties had quarrelled on the fateful day also, that shows that occurrence had not started in the way, the prosecution had claimed and apparently it ensued as a result of quarrel between the ladies which involved the male members also. This observation gets support from the statement of the.Complainant whereby he had admitted that women of the accused had been supplying the Sotas to the accused during the occurrence that shows that initially the accused were not armed with any sort of weapons and it was a sudden flare up during which Iqbal appellant caused only one injury to the deceased. Though he was allegedly armed with hatchet but he had opted to use the same from its wrong side. Thereafter admittedly he had avoided to repeat the injury. According to the doctor who had conducted post-mortem on the dead body of the deceased there was no fracture of scalp bone and membrane of his brain was intact. That shows that the blow of hatchet was not so forceful. During the cross-examination the said doctor had further admitted that had the deceased beep operated in time there would have been a chance of his survival, For determining the question of intention of any accused to murder any person, the nature of weapon of offence, number of blows and force used behind such weapon by said accused is always kept into consideration. All the circumstances enumerated above leads me to conclude that though Iqbal appellant can be burdened with the knowledge that blow was likely to cause death but there was certainly no intention on his part to murder the deceased. Consequently, his appeal is accepted to the extent that conviction awarded to him under section 302(b), P.P.C. Is converted to section 302(c), P.P.C. As far as the question of sentence is concerned, sentence of 14 years' R.I.
Would meet the ends of justice. Consequently, sentence awarded to him is reduced to 14 years' R.I.
He is further directed to pay Rs,2,00,000 as compensation to the legal heirs of the deceased, in default whereof he shall suffer imprisonment of six months. As the occurrence was a sudden affair sentence awarded to him under section 148, P.P.C. Is set aside. Similarly conviction and sentence awarded to him under sections 337-A(ii) and 337-L(ii), P.P.C. Are also set aside as he had not caused any injury to any P.W. He would be entitled to get benefit of section 382-B, Cr.P.C.
As far as the rest of the appellants are concerned they have already served out their sentences of imprisonment. Their sentence to the extent of "Arsh" amount was suspended by this Court vide order dated 24-12-2003. The role attributed to Muhammad Amir does not get support from the medical evidence. Consequently, he is acquitted of all the charges. As held above the occurrence was a sudden flare up the conviction and sentences awarded to Abdur Rehman and Riaz under section 148, P.P.C. Are also set aside. Case being of individuality they cannot be convicted under said section 337-A(ii), P.P.C. As injuries received by Ghulam Hassan complainant (P.W.3), which fell under the said provisions of P.P.C. Had not been attributed to them. As far as the sentence under section 337-L(ii) is concerned both of them have already served out their sentences. Consequently, there is no need to send them behind the bars: Their appeal is disposed of in the said terms.
' With the above said modification in the conviction and sentences awarded to the appellants this appeal stands disposed of.