1. Tariq Parvez Khan, C.J.--Through this single judgment we intend to dispose of four connected matters as they have arisen out of single FIR Bearing No, 100 dated 9.5.2002 of Police Station Phulra. Cr. Appeal No, 48/05 is filed by Gulzar and Ali Asghar through which they have challenged their conviction and sentence. Cr. Revision No, 20/05 is filed by Sher Bahader for enhancement of sentence of Gulzar and Ali Asghar. Cr. Revision No, 21/05 is filed by Sher Bahader against Waris respondent for enhancement of his sentence who is co-accused of Gulzar and Ali Asghar but he being a juvenile was separately tried. Cr. Appeal No, 70/05 is filed against acquittal of the three respondents but admitted only against Shah Zaman who stands acquitted by the trial Judge.
2. 2.Trial was held and judgment dated 17.5.2005 has been authored by Additional,Sessions Judge Mansehra.
3. The trial Court vide judgment impugned has awarded sentences as under:- Gulzar appellant is convicted under Section 302(c) PPC and sentenced to 14 years R.I. with a fine of Rs, 40,000/- payable as compensation under Section 544-A Cr.P.C., in default six months S.I. Further convicted under Section 324 PPC and sentenced to seven years R.I with a fine of Rs, 20000/-, in default three months S.I. Also convicted under Section 337-A(ii) PPC and sentenced to three years R.I. and also to pay compensation/Arsh to the tune of Rs, 20000/-.
4. Ali'Asghar appellant was convicted under Section 324 PPC and sentenced to seven years R.I. with a fine of Rs, 20000/-, in default three months S.I. Under Section 337-A(ii) PPC he was convicted and sentenced to three years R.I. and to pay compensation/Arsh of Rs, 20,000/-. Under Section 337- F(iv) read with Section 337-F(v) PPC convicted and sentenced to two years R.I. and to pay compenastion/Daman of Rs, 10000/-. Both the appellants were extended the benefit of Section 382-B Cr.P.C.
5. 3.Deceased of this case is Khawaja Muhammad whereas complainant is Sher Bahader (PW5) brother of the deceased.
6. 4.There are two injured witnesses besides complainant and they are Sher Muhammad (PW6) who is also brother of the deceased and Muhammad Sartaj (PW9) nephew of the deceased.
7. 5.( rime was committed on 9.5.2002 at 3 p.m. but was reported at 6 pm the same date.
8. According to the report which was initially recorded as Daily Diary No, 5 it was stated by the complainant, who himself was injured, that on the day of occurrence he, his brother Khawaja Muhammad, Sher Muhammad and Muhammad Sartaj his nephew while taking water from the water scheme sponsored by District Council, in the meanwhile accused Ali Asghar, Waris, Gulzar who are brothers inter se, Shah Zaman their father, Mst. Hassan Jana their mother and Mst. Zulekha their sister they all came to the courtyard of their house and started altercation and quarrel forbidding them not to take the water but the accused party allegedly started pelting stones and giving beating.
9. 6.Role of individual accused has been specified in the FIR by stating that complainant received stone and stick blows at the hands of Ali Asghar appellant. Deceased Khawaja Muhammad was given stone and stick blows by Gulzar appellant, PW Sher Muhammad was hit with the stone used by Waris respondent. Muhammad Sartaj was given stone blows by Gulzar appellant and during this Shah Zaman, Mst. Hassan Jana and Mst. Zulekha also pelted stones on the complaivant party.
10. 7.Learned counsel appearing for the convicted appellants has argued that deceased Khawaja Muhammad was shown at Point No, 4 but no blood was recovered and the blood stained stones were recovered at Point No, 13 where deceased Khawaja Muhammad has been shown after he has run away from Point No, 4.
11. 8.Learned counsel argued that the site plan negates the version given in the FIR because according to the FIR the entire episode took place in the courtyard of the house of the complainant but according to the site pin the crucial events have happened at Points Nos, 13 to 17 which are away from the house of the complainant at a distance of 50/60 yards.
12. 9.He also argued that although in the FIR the blows to deceased Khawaja Muhammad are attributed to Gulzar but in the site plan they have been also attributed to Ali Asghar. He referred to Point No, 14 and also to Point No, 126 where Mst. Hassan Jana accused is said to have caused fatal stone belows to deceased Khawaja Muhammad.
13. 10.Learned counsel has referred to the statement of Sher Bahader complainant where he deviated from his stance taken in the FIR and has shown the presence of Mst. Zulekha, Shah Zaman and Mst. Hassan Jana on the roof top of their house in the courtyard.
14. 11.Learned counsel has referred to the statement of Sher Muhammad (PW6) who also has referred to the presence of above named three accused not on the roof top but in the courtyard of the house of the complainant. He referred to the statement of Muhammad Sartaj (PW9) who stated that Khawaja Muhammad who was initially attacked at Point No, 4 has run away to Point No, 13 who was followed by Gulzar, Ali Asghar, Mst. Hassan Jana and Mst. Zulekha at a place known as Dakha Rakh where all the four accused pelted stones at Khawaja Muhammad and seriously wounded him.
15. 12.His argument is that evidence of the prosecution is full of inconsistencies with medical evidence as well as site plan.
16. 13.The doctor who prepared the medicolegal reports and conducted post-mortem on the dead body of Khawaja Muhammad was Dr. Abdul Qadir but he could not be examined and instead Iftikhar Hussain MO (PW4) appeared to prove the medico-legal reports and' the post-mortem report.
17. 14.Counsel for the complainant, however, argued that case of the prosecution stands proved because they have examined three injured witnesses and since occurrence has taken place at day time, there is no question of mis-identity and that parties are known to each others. So is the stance taken by learned counsel appearing for the State.
18. 15.After we have heard learned counsel for the parties and perused the record, we have come to the conclusion that occurrence was as a result of sudden altercation and was at the spur of moment. It is admitted by Sher Bahader that there was no previous enmity except that at the time of occurrence the accused party stopped him not to take water from the water-tap and then there was a quarrel. In such eventuality where case is proved, each of the accused would be responsible for his own act.
19. 16.We have analyzed the evidence and find that in the FIR deceased Khawaja Muhammad is stated to have been hit by Gulzar appellant, complainant Sher Bahader by Ali Asghar appellant and PW Muhammad Sartaj by Gulzar appellant whereas PW Sher Muhammad by Waris respondent.
20. 17.Since there are three injured eye-witnesses and they have no previous enmity against the appellant, one cannot. doubt their presence.
21. 18.There is yet another aspect of this case that Daily Diary No, 5 dated 9.5.2002 Ex. PW 3/1 though recorded on the report of Sher Bahader but is duly thumb impressed by Khawaja Muhammad (deceased then injured), the dying declaration in the foot note contains that it was read over to the deponent and the injured who accepted the same to be correct. Thus document Ex. PW 3/1 be taken as dying declaration.
22. 19.Keeping in view the document Ex. PW-3/1 duly thumb impressed by deceased, then injured, and since there is no previous enmity, there is no room for false charge.
23. 20.We have gone through the medico-legal reports and the postmortem report but when seen in the light of description as described in the site plan where Ali Asghar, Shah Zaman and Mst. Hassan Jana are also charged for causing serious stones blows. The liability of Gulzar appellant to have singly caused death of Khawaja Muhammad has become doubtful. We believe all the three eye-witnesses to be present on the spot and have correctly charged the accused as for appellant Gulzar, Ali Asghar and Waris are concerned.
24. 21.As for Sher Zaman acquitted accused is concerned, his participation in the crime is open to doubt because according to the FIR' and the site plan he is shown in the courtyard with the two ladies but in the Court statement on the roof-top, his acquittal is therefore maintained and appeal filed by Sher Bahader complainant against his acquittal is dismissed.
25. 22.Waris respondent is charged for causing injuries to Sher Muhammad. He was a juvenile and he has been awarded three years R.I. and a fine of Rs, 10,000/-, the same is maintained and Cr.
26. Revision No, 21 of 2005 filed against him is dismissed.
23. We are now taking up the case of Gulzar and Ali Asghar appellants. Since in the FIR they have been specified the role but in the Court statement have been vicariously held liable for causing death of Khawaja Muhammad but considering the document Ex. PW-3/1 thumb-impressed by deceased, then injured, we only hold Gulzar appellant responsible for causing, death of Khawaja Muhammad but because of absence of previous enmity and occurrence has taken place at the spur of moment and keeping in view the weapon used, the sentence of 14 years R.I. is reduced to 10 years R.I. and for the same reasons conviction recorded under Section 324 PPC from seven years is reduced to three years R.I. However, conviction and sentence under Section 337-A(ii) PPC is left intact.
24. Ali Asghar appellant has been awarded seven years R.I. under Section 324 PPC but for the reasons recorded in case of Gulzar for-reduction of sentence, his sentence of seven years is also reduced to three years R.I. His conviction and sentence under Section 337-A (ii) PPC is maintained.
27. As for payment of fine, Arsh and Daman, they are left intact with benefit of Section 382-B extended.
28. Needless to say that sentence of each of the appellant, if on more than one charge shall run concurrently. Therefore, the appeal filed by Gulzar and Ali Asghar is partially allowed.
25. As we have partially allowed the appeal of Gulzar and Ali Asghar, we do not find any merit in the revision for enhancement of sentence Bearing No, 20/05, the same is dismissed.