' KHAWAJA MUHAMMAD SHARIF, J.---This judgement will dispose of Criminal Appeal No,116 of 1998 filed by Muhammad Yousaf, Nisar Ahmad and All Akbar, appellants, who were convicted and sentenced by learned Additional Sessions Judge, Samundri vide judgment dated 27-1-1998 as under:--- ' Imprisonment for life and to pay fine of Rs,25,000 each, in default 2 years' R.I. Each under section 302/ 34, P.P.C.
' Two years' R.I. And to pay a fine of Rs,5,000 each, in default six months' R.I. On three counts for causing injuries to Muhammad Iqbal, Abdul Ghaffar and Mst. Rukhsana, under section 324/34, P. P.
C .
' The sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
' Khushi Muhammad, complainant has also filed Crl. Appeal No,154 of 1998 to assail the acquittal of Mst. Nargis and Criminal Revision No,145 of 1998 for enhancement of sentence of convicts. Both these cases shall also be disposed of through this single judgment.
2. Briefly stated the facts of the case are that on the fateful day (6-10-1995), Muhammad Tufail, Muhammad Iqbal and his uncle Abdul Ghaffar brought earth on tractor for plastering the Chhapar.
When they started unloading the earth, Muhammad Yousaf restrained them from unloading the earth as a result whereof a dispute took place between them. Muhammad Tufail etc, pushed Muhammad Yousaf who went to his house remarking that he will take the avenge of his insult. At about 8 a.m. When Muhammad Tufail, Muhammad Iqbal and Abdul Ghaffar were unloading the earth, Muhammad Yousaf, Nisar and Mst. Nargis, Ali Akbar, all armed with .12 bore guns and Mst.
Nargis armed with hatchet came there while raising Lalkaras. Muhammad Tufail tried to stop them upon which Mst. Nargis inflicted two successive blows on the head of Muhammad Tufail. He (Muhammad Tufail) and Mst. Bakhshi snatched the hatchet from Mst. Nargis. In this process, right and left fingers of both Tufail and Mst. Bukhshi were injured. Thereafter, Muhammad Yousaf accused fired with his gun, which hit on the left ear of Muhammad Tufail. The shot fired by Nisar landed on the left leg of Tufail. He succumbed to the injuries at the spot. Karim Bukhsh arid Abdul Majid attracted to the place of occurrence. In the meantime, Muhammad Iqbal, Abdul Ghaffar and Mst. Bukhshi along with Mst. Rukhsana who were present nearby proceeded ahead. Muhammad Yousaf accused fired with his gun which hit on the belly and left side of head of Abdul Ghaffar. AU Akbar accused fired two shots which, hit on the left arm and shin of Abdul Ghaffar. Thereafter, Yousaf, Nisar and Ali Akbar resorted to indiscriminate firing, which hit on the face, arms of Muhammad Iqbal as also on the leg of Mst. Bukhshi. The injured Muhammad Iqbal, Abdul Ghaffar, Mst. Rukhsana and Mst. Bukhshi were sent to hospital. The matter was reported to the police through written complaint Exh.P.A. By Khushi Muhammad to Muhammad Bukhsh S-I. At 10 a.m. At Mor chak No,149 on the same day and the formal F.I.R. Exh.P.A./1 was recorded by Muhammad Suqlain, Muharrar of the Police Station Sadar Samundri district Faisalabad.
3. Investigation of the case was taken over by Muhammad Bukhsh S-I. (P.W.15). He sent the complaint Exh.P.A. To police station, went to the place of occurrence in chak No,138/GB, took into possession the dead body of Muhammad Tufail deceased, prepared injury statement (Exh.P.N.), inquest report (Exh.P.O.), prepared the site plan without scale Exh.P.P., secured blood stained earth vide memo. Exh.P.H., crime empties were taken into possession vide memo. Exh.P.I (1/7), tractor trolley was secured vide memo. Exh.P.J. After that he went to the hospital, recorded statements of the injured and on 9-11-1995 arrested Muhammad Yousaf and Nisar Ahmad accused. On 9-11-1995 Muhammad Yousaf got recovered .12 bore gun P.2 which, was secured vide memo. Exh.P.K. On the same day, Nisar accused led to-the recovery of .12 bore gun P.3 which, was taken into possession vide memo. Exh.P.L. Akbar Ali accused was arrested on 29-11-1995 and on 2-12-1996 got recovered gun P.4 which was secured vide memo. Exh.P.M. Mst. Nargis was arrested on 6-12-1995. After completion of investigation, all the four accused were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 15 witnesses in all. Then the learned D.D.A. Tendered in evidence reports of the Chemical Examiner, Serologist and Forensic Science Laboratory and closed the case of the prosecution. Statements of the accused were recorded under section 342, Cr.P.C. They in defence produced Raja Mushtaq Ahmad D.S.P. As D. W.1. After conclusion of the trial, the accused were convicted and sentenced as stated above.
5. Learned counsel for the appellants submits that there was no previous background of enmity between the parties, the occurrence had taken place at the spur of the moment, it was a case of right of self-defence, the accused were also injured but due to mala fide of the police and the complainant, they were not got medically examined, there is conflict between ocular account and the medical evidence because two injuries on the person of the deceased had blackening while according to the site plan prepared by the Patwari, the distance between the assailants and the deceased was 26 feet and the distance being 26 feet, blackening could not have been there, crime empties were not mentioned in the inquest report and that the guns have been planted upon the appellants. Learned counsel submits that trial Court was justified in awarding imprisonment for life to the convicts and that one of the appellants namely Nisar has been released from jail after having served out his total sentence. Concluding his submissions, learned counsel submits that appellants are entitled to acquittal.
6. Learned counsel for the complainant who has filed Cr. Appeal and Cr. Revision submits that it is a case in which one person lost his life while four were injured, all the injured witnesses have appeared before the trial Court and fully implicated the appellants, ocular account is corroborated by medical evidence and that version of the appellants has no legs to stand. Further submits that so far as convicts Yousaf and Akbar Ali are concerned, report of the Fire-Arm Expert is positive in nature. Lastly submits that reasoning given by the trial Court while acquitting Mst. Nargis are against the principles set down by the superior Court for administration of criminal justice.
7. We have heard the learned, counsel for the parties at length and have gone through the record.
In the instant case, four accused including Mst. Nargis who have been acquitted by the trial Court were A named in the F.I.R. According to complainant, Mst. Nargis was armed with a hatchet but the said hatchet was never recovered from her and the reasoning given by the trial Court at page 21 of the judgment for acquitting her are cogent, supported from the evidence on record and no exception can be taken thereto. The appeal filed by the complainant against the acquittal of Mst.
Nargis is dismissed.
8. Now, we take up the case of convicts Muhammad Yousaf, Nisar and Ali Akbar. It is a case of two versions, one introduced by the defence and other set up B by the prosecution. The version of defence is reflected from the statement of Muhammad Yousaf recorded under section 342, Cr .P.C.
The same is reproduced for facility of reference:--- "Despite the decision of the Punchayat forbidding the parties from encroaching upon the State land i.e, pond, the complaint party came to fill in the Pond just on the door of our house, they called me from my house and challenged that they had come to fill the pond. I asked them to abide by the decision of Punchayat but they abused the Punchayat and attacked upon me. They seriously injured me. My brother Nisar alias Sana came there. They caught him also. I ran towards the fields but they caught me. In the meantime Muhammad Tufail pushed with, his legs and broke open the door. He dragged my wife Nargis Bibi out of her house while she was preparing breads. He caught hold of her pigtail, thrashed on ground. The lady companions of Muhammad Tufail joined him, threw her child on the ground and gave her beating. At this, Nisar Ahmad could not tolerate and fired at Muhammad Tufail. Then firing from both sides started resulting in causalities. We appeared before the police on that very day but our arrest was kept pending till our injuries were healed, We were not medically examined. So many persons gathered there, all deposed about the occurrence but the I.O. Was dishonest. The complainant party had planned this all with the collaboration of Rana Farooq Ahmad the then MPA who manoeuvred the false and dishonest investigation."
' After having put both the versions in juxtaposition, the version put by the defence has no legs to stand and does not appeal to reasons. If the police did not get the convicts medically examined with mala fide intentions as alleged by the defence, no request in writing was made before the learned Magistrate either when the physical remand was obtained or when they were sent to judicial lock up. We are thus not going to believe the defence version.
' There were five injuries on the person of the deceased, three were with sharp edged weapon while other two were with fire-arm. Abdul Ghaffar, Mst. Rukhsana and Muhammad Iqbal the injured appeared before the trial Court and supported the prosecution case. There was no previous background of enmity so there was no question of false implication of the, appellants.
' It was a case of promptly lodged F.I.R. Because the occurrence had taken place at 8-00 a.m. On 6- 10-1995 while the matter was reported to the police at 10 a.m. On the same day. The report of the Fire-Arms Expert to the extent of Muhammad Yousaf and Akbar Ali is also positive. The presence of Nisar Ahmad, convict appellant, is admitted by Muhammad Yousaf, appellant.
' It being a case of promptly lodged F. I . R. , ocular account having been corroborated by medical evidence by production of three injured P.Ws., report of the Fire-Arms Expert being positive to the extent of Yousaf and Akbar, presence of Nisar Ahmad at the spot having been admitted by Muhammad Yousaf, appellant E and we having disbelieved the defence version, no grounds exist to take a view different to the view which has been taken by the learned trial Court. Resultantly, the appeal filed by the convicts is dismissed. Conviction and sentences recorded against them by the trial Court is maintained in toto. Muhammad Yousaf and Ali Akbar, appellants are on bail. They shall be taken into custody to serve out the remaining sentence. Nisar Ahmad, appellant, according to learned counsel for the appellants and not disputed by learned counsel for the complainant, has been released from jail after having served out his full term of sentence.
' So far as notice of enhancement of sentence is concerned, the same is withdrawn for the reasons, that occurrence took place on 6-10-1995, conviction was recorded on 27-1-1998, Nisar Ahmad one of the convicts has been released from jail after having served out his full term of sentence, there is also element of expectancy of life, there was no previous background of enmity, both the sides are from the same brotherhood and are also neighbours. Criminal Revision for enhancement of sentence of the convicts is also dismissed.
' Before parting with his judgment, we would like to observe that "{{URDU TEXT}}" having not been adopted, conviction could not have been recorded under section 302, P.P.C. But it should have been under section 302(b), P.P.C. We alter the same accordingly.