' MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.---Appellants Abdul Majeed, Rahat Majeed and Muhammad Azeem along with Muhammad Waseem were tried by Addl. Sessions Judge, Faisalabad in a private complaint titled Muhammad Shafi v. Abdul Majeed and 4 others for an offence under sections 148/302/324/149, P.P.C. For the murders of Muhammad Ahmad and Muhammad Asif and murderous assault on Mukhtar Ahmad (P.W.2). This occurrence took place within the jurisdiction of Police Station Satiana, District Faisalabad.
' About the said offence case F.I.R. No. 386 of 1998, dated 17-8-1998 was also registered at 8-40 p.m.
Under sections 148/302/324/ 149, P.P.C. At Police Station Satiana District Faisalabad.
2. The facts of the prosecution case as narrated in the F.I.R. Are that on 17-8-1998 in the evening Muhammad Asif son of Muhammad Shafi (complainant) Muhammad Ahmed son of Tahir, Mukhtar son of Muhammad Tufail all Rajput by Caste, resident of Chak No.40/GB Tehsil Jaranwala were playing Cricket with Amar Majeed alias Hafeez, Rahat Majeed sons of Abdul Majeed residents of the same village. During the play they quarrelled and Muhammad Asif Muhammad Ahmad and Mukhtar gave beating to Amar Majeed and Rahat Majeed. Both the said persons while leaving the spot threatened that they would take the revenge for their insult. The complainant along with Muhammad Hanif son of Muhammad Siddique and Sardar Muhammad son of Muhammad Sadiq upon the information about the said altercation reached at Cricket ground at 6-30 p.m. When Amar Majeed and Rahat Majeed along with their father Abdul Majeed and Muhammad Azeem armed with daggers and Muhammad Waseem armed with .12 bore gun reached the spot and while raising lalkara launched an attack Muhammad Waseem fired which hit Muhammad Asif son of complainant on the right thigh as well as to Muhammad Ahmad on the back of left hand near thumb. Rahat Majeed inflicted dagger blows one after the other to Mukhtar Ahmad which hit on the right side of back and near penis. Abdul Majeed gave injury with dagger to Muhammad Ahmad on the left side of the chest. Muhammad Azeem also gave dagger blow to Muhammad Ahmad hitting on the right side of the abdomen. Amar Majeed gave dagger blow to Muhammad Ahmad which hit on front side of abdomen. Complainant and the P.Ws. Did not intervene because they were empty handed but raised hue and cry. The accused persons thereafter while raising lalkara decamped from the spot.
' During the investigation Abdul Majeed and Muhammad Azeem were found innocent and complainant being not satisfied by the mode of investigation filed the above said private complaint showing the same facts which were narrated in the F.I.R. Trial Court after complying with legal formalities summoned the accused persons and proceeded with matter.
' During the trial prosecution produced fifteen witnesses including Muhammad Hanif P.W.1., Mukhtar Ahmad P.W.2 and Muhammad Shafi P.W.3., the eye-witnesses of occurrence. Trial Court also examined Zafar Abbas S.-I. As C.W.1 who had conducted the investigation of the challan case.
3. During the examination under section 342, Cr.P.C. Appellants took a specific plea. The same in the words of Rahat Majeed appellant reads as under:-- "There is a play ground in the village for playing cricket. Villagers play cricket thereat. I Rahat Majeed, along with Amar Majeed and Waseem also used to play therein. Muhammad Ahmad deceased and Muhammad Asif deceased also used to play there at. One day prior to this occurrence Muhammad Asif and Muhammad Ahmad both deceased played foul. They were admonished by Amar Majeed and myself (Rahat Majeed) and were asked not to come again in ground. They were also assaulted by Amar Majeed and myself (Rahat Majeed). On next day i.e. Day of occurrence at 5-30 P.M. Muhammad Ahmad and Muhammad Asif both the deceased came armed to have the turn of play there and at the very start Muhammad Asif holding his gun from the barrel side which was loaded and cocked, attacked upon Muhammad Waseem accused from Butt side on his head. He (Waseem) made a bow over his head with his hands, the gun struck and went off. When the gun was struck, Asif was falling towards his back side and gun went off and the' pallets hit the right thigh of Muhammad Asif deceased who was falling and fell down. Waseem also fell down towards his back side after struck of the butt of the gun. He ran away from the place of occurrence. I also ran away. Any how later on came to my knowledge that Muhammad Ahmad deceased took out dagger from his person and tried to attack Amar Majeed he caught hold arm of Muhammad Ahmad holding the dagger and tried to snatch dagger and in that scuffle both fell down. Amar Majeed was under and Muhammad Ahmad over. The dagger was snatched by Amar.
Muhammad Ahmad with full force started strangulating Amar with both hands, he gave three stab blows on the front side of Muhammad Ahmad in defence and as such got himself released.
Mukhtar Ahmad tried to arrest Amar in the circumstances, he was also injured. Asif deceased died of his own fault and Muhammad Ahmad died due to the injury caused in defence. Abdul Majeed my father and Azeem my cousin, brother of Muhammad Waseem were not there at the time of occurrence. No injury with gun shot Was received by Muhammad Ahmad.
' The fact that the incidence of motive took place earlier one day than occurrence is admitted by C.W.1 Zafar Abbas in his evidence in Court at page 2 lower-half. The P. Ws. Muhammad Shafi and Muhammad Hanif have not seen the occurrence due to non-presence. Moreover Muhammad Hanif P. W.1 has admitted in his evidence in Court at page 4 upperhalf "I did not see the police on the day of occurrence. I had gone to village Shinker Tehsil Jaranwala on that day. And Muhammad Shafi P.W.3 admitted in Court at page 3 lowerhalf" Question, you would have not proceeded to the place of occurrence, had the earlier incident of that day not taken place in the play grounds? Yes. It is correct."
' None of the appellants or their co-accused made any statement under section 340(2), Cr.P.C.
However, Muhammad Hussain was produced as D.W.1 who brought the record of the Union Council with regard to the birth entry of Amar Majeed alias Hafeez son of Abdul Majeed (co-accused of the appellant). The case of Amar Majeed, being a minor at the time of occurrence, was separated and sent to the Juvenile Court.
4. Trial Court after processing the evidence convicted the appellants under section 148, P.P.C. And sentenced each of them to two years R.I. Under sections 302/149, P.P.C. Each appellant was convicted and sentenced to imprisonment for life with a fine of Rupees one lac each Rahat Majeed appellant was also convicted under section 337-F(i), P.P.C. And sentenced to one year, R.I. And under section 337-F(ii), P.P.C. Convicted and sentenced to two years R.I. As Taazir. He was further convicted under section 324, P.P.C. And sentenced to seven years R.I. With a fine of Rs.20,000 or in default whereof to further undergo one month's R.I. It was further directed that on realization of amount of fine i.e. Rs.20,000 half of the same would be paid to Mukhtar injured P.W. As compensation trial Court while passing the judgment also issued perpetual warrants of arrest against Muhammad Waseem who absconded during the trial.
5. Challenging their conviction and sentence the appellants filed Criminal Appeal No. 627 of 2002 while Muhammad Shafi complainant has filed Criminal Revision 590 of 2002 seeking enhancement of sentence of the respondents/appellants. Both these matters are being disposed of together by this judgment.
6. I have considered the contentions of the learned counsel and have gone through the record of this case. It is a case of two versions. Time, place of occurrence as well as the weapon used during the occurrence are admitted facts and only the question to be resolved is whether story of the prosecution is to be relied upon or the defence plea is to be accepted as a gospel truth.
' The crux of both the versions is that this occurrence took place because of melee between young boys whey they were playing cricket. The stand of the prosecution is that few hours prior to the occurrence this scuffle took place and the appellants were insulted by the deceased and the injured witness whereas the defence plea is that this altercation took place one day prior to the main occurrence. From the prosecution side three witnesses namely Muhammad Hanif P.W.1., Mukhtar Ahmad P.W.2 and Muhammad Shafi P.W.3 had deposed in favour of the prosecution.
During this occurrence Mukhtar Ahmad P.W.2 received injuries at the hands of the appellants. He was medically examined on the same day. The duration of the injuries on his person tallies with the time of occurrence thus his presence at the spot stands established from the record. While deposing before the trial Court during cross-examination he did not support the prosecution case and while toeing the defence plea admitted that during this occurrence when Muhammad Ahmad deceased tried to give injury with butt of the gun to Muhammad Asif deceased, the same went off and Muhammad Asif received injuries on the thigh. The medical report reveals that there was blackening and scorching around the wounds, the doctor also recovered wads from the wounds which mean that injury was caused from a close range and to this extent statement of Mukhtar Ahmad P.W. And the defence plea stands corroborated. This injured witness also admitted that at the relevant time Abdul Majeed and Muhammad Azeem were not present, during investigation the opinion of the agency was also the same and both the said accused/appellants were declared innocent. Muhammad Hanif P.W.1 and Muhammad Shafi P.W.3 claim to have reached the spot on receiving the information about the quarrel between the parties which took place few hours prior to the main occurrence. Statedly after the occurrence they had removed the injured to the hospital for medical treatment Muhammad Shafi P.W.3 while deposing before the trial Court also admitted that on seeing his son Muhammad Ahmad in an injured condition, he picked him up and his clothes were smeared with blood but during the investigation his blood-stained clothes were never taken into possession by the agency. Similarly the medico-legal report Exh.PP is also silent with regard to the presence of these witnesses in the hospital. This report reveals that one Iftikhar Ahmad took the injured to the hospital. The said Iftikhar was never produced before the trial Court and there is no explanation about his non production. The statements of the said two witnesses also reveal that during this occurrence Muhammad Ahmad received firearm injuries at the back of right hand but the postmortem report of Muhammad Ahmad reveals that said injury was caused with a sharp-edged weapon. Even otherwise as stated by these witnesses that accused being duly armed with firearm and daggers had come to the place of occurrence with the intention to commit murder to take the revenge of the previous insult than the accused who was armed with firearm should have fired on the vital part of the body of Asif deceased. Similarly the mission could have been accomplished by Muhammad Waseem (P.O.) by making firing at the spot and there was no occasion for using the daggers by his co-accused during the occurrence. The presence of these two witnesses in the circumstances of the case is not free of doubts.
' On the other hand, in support of defence plea none of the appellants made any statement under section 340(2), Cr.P.C. Nor produced any evidence in support of their defence plea. If the story as narrated by Rahat Majeed appellant is accepted, the same does not fit in the circumstances of this case. It was not possible for Amar Majeed (co-accused) to cause injury in the abdomen, chest and back of the right hand of Muhammad Ahmad deceased when he was lying under him (Muhammad Ahmad deceased) and was being strangulated. Similarly Muhammad Asif deceased could not get injury on the thigh in the manner and mode explained by the defence.
7. While putting both the versions in juxta-position the irresistible conclusioh is that none of the parties had come with clean hand and had concealed the true facts. In such like situation Court has to form its own opinion about mode and manner in which the occurrence might had taken place. (Syed Ali Bepari v. Nibran Mollah and others PLD 1962 SC 502).
' The picture which emerges from the facts of this case is that, this occurrence was the result of sudden fight which erupted during the cricket match, everything happened at the spur of moment and it was not a preplanned murder. Keeping in view the statement of Mukhtar Ahmad P.W.2, the injured witness and the circumstances of the case the participation of Abdul Majeed who is an aged person and father of Rahat Majeed (appellant) and Muhammad Azeem is not free of doubt.
Both of them are entitled to the benefit of the same. Similarly, in the light of said observations the conviction of all the appellants under section 148, P.P.C. Is also not sustainable. Accordingly, this appeal to the extent of Abdul Majeed and Muhammad Azeem appellants is accepted, their conviction and sentences are set side and both of them are acquitted of the charges. Both Abdul Majeed and Muhammad Azeem shall be released forthwith if not required to be detained in any other case.
8. As far Rahat Majeed appellant is concerned, while acquitting him from the charge under section 148, P.P.C. The instant appeal to his extent is otherwise dismissed. It is further clarified that trial Court while passing the sentence under section 302(b), P.P.C. Has erroneously awarded him the sentence of fine. To this extent it is made clear that Rs.1,00,000 shall be paid by the appellant (Rahat Majeed) as compensation to the legal heirs of both the deceased or in default of payment he shall further undergo six months S.I. His sentences on all the charges shall run concurrently. Benefit of section 382-B, Cr.P.C. Is also extended in his favour.
9. In the light of the observation made above, Criminal Revision No.590 of 2002 seeking enhancement of sentence of the appellant stands dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.