' ALI NAWAZ CHOWHAN, J.---This judgment shall disposed of Criminal Appeal No, 1031 of 1998 as well as Murder Reference No, 423 of 1999.
2. The matter pertains to case F.I.R. No,7 dated 17-1-1996 registered under sections 302, 324, 148 and 149, P.P.C. At Police Station Ganda Singh Wala District Kasur.
3. Through his judgment dated 11-111998 Sheikh Liaqat Ali, learned Additional Sessions Judge, Kasur convicted and sentenced the appellants/convicts as follows:-- {{DATA UNARRANGED}}
(1) Mukhtar Ahmad Convicted under
(2) Bagh Ali sections 148 P.P.C.
(3) Sarwar and sentenced each of
(4) Munir Ahmad them to two years' R.I.
(i) Mukhtar Ahmad Convicted under (ii)) Bagh Ali section 302(b)/149,
(iii) Sarwar P.P.C. And sentenced each of them to imprisonment for life.
(i) Munir Ahmad Convicted under sections 302(6)/149, P.P.C. And sentenced him to death.
(ii) Mukhtar Ahmad Convicted under section 324, P.P.C. And sentenced him to 10 years' R.I. And fine of Rs, 5000. In default of payment, 3 months' S.I. {{DATA UNARRANGED}} ' The sentences of Mukhtar Ahmad, Bagh Ali and Sarwar were to run concurrently. Benefit of section 382-B, Cr.P.C. Was also given to them.
' Whereas, Riaz accused had absconded and his case was separated.
4. The occurrence related to 16-1-1996, about which the F.I.R. (Exh.PC) was registered on the following day through the statement of Mehmood Ahmad (P.W.5). This unfortunate occurrence had taken place over a cricket ground where the basic dispute was with respect to the right of playing the game. The injuries caused to the deceased and the injured P.W. As well as accused Mukhtar were all caused by blunt weapons i.e, bat and wickets. It was said that a day previous to the occurrence, a quarrel had taken place over the use of the playground and according to the complainant side, while they had started playing cricket at the playground belonging to the government in the area of a Primary School in Mianwala, Police Station Ganda Singh Wala, the accused while assembling unlawfully had come to assault having been agitated by the previous day's incident and thus the occurrence took place.
5. There is a cross-version of the occurrence. According to Mukhtar appellant, he had been assaulted while the game of cricket was being played and this led to the occurrence. Regarding the injuries sustained by Mukhtar, no such fact was mentioned by the complainant. Mukhtar appellant got himself medically examined after efforts, therefore, two versions about the occurrence have emerged on record.
6. Mehmood Ahmad, the complainant, through his testimony supported the prosecution case, narrated by him, and informed as to how the occurrence of 16-1-1996 took place, he said:-- ' "On 16-1-1996 at about 4-30 p.m. I along with my cousin Ramzan deceased, Shabbir, Tariq and Khalid Mehmood P.Ws. Were present at Primary School, Mianwali, P.S. Ganda Singh Wala. We were all present to play cricket. In the meanwhile Bagh Ali, Sarwar, Mukhtar, Riaz and Munir accused present .In court came there. Riaz and Munir accused were having cricket bat with them while Mukhtar Ahmad accused was having wickets ,in his hand. Bagh Ali and Sarwar accused were empty-handed. All the said accused came there. We had just started cricket game when Bagh Ali accused said that this place is meant for their children to play cricket hence forbade us. Ramzan deceased said that this common village place owned by the Government so he persisted to play cricket game there. Bagh Ali accused raised Lalkara that Ramzan be overpowered and be tasted tor not allowing them to play cricket. Sarwar accused held Ramzan in his Jappha. Riaz accused inflicted two blows with bat hitting on right and left side of the head of Ramzan. Ramzan fell down with his face upward. Thereafter Munir accused present in court inflicted bat blow which landed on the forehead of Ramzan. Tariq P.W. Was standing at a little distance. He was held in Jappha by Bagh Ali accused. Mukhtar accused inflicted four blows with wicket hitting him on left side on nose of Tariq P.W, second blow was given with wicket on left side of cheek, third blow on his left shoulder and fourth blow on his left hand. Shabbir P.W went ahead in order to rescue Tariq P.W, he raised his hand and Mukhtar accused inflicted wicket blow which was warded off by Shabfiir P.W with his hand. Thereafter the accused ran away from the spot. I, Shabbir and Khalid P.Ws. Attended to Ramzan then injured. We took Ramzan and Tariq in injured condition to D.H.Q. Hospital, Kasur. The MO of D.H.Q. Hospital, Kasur admitted Tariq P.W. And referred Ramzan to General Hospital, Lahore. I took Ramzan injured P.W. To General Hospital, Lahore where he was admitted. 1 came back to my village after admission of Ramzan then injured to General Hospital, hence quite some time of night has passed, so I stayed at my house. On the following day of occurrence at early hours of morning I was coming towards. P.S. Ganda Singh I met Thanedar (A.S-I.) met me at outside of village Burj Kalan where I lodged report Exh. PC."
' Regarding the motive part of the story, his statement was as follows:- ' "On day prior to the occurrence a quarrel had taken place between Ramzan deceased and Riaz accused on the other side over playing cricket, in primary school ground, Mian Wala. Riaz abused Ramzan and said that in future Ramzan deceased would not be associated in cricket game. I was also present on this occasion but the matter was patched up. Riaz etc. Accused on the day of occurrence came prepared and intentionally committed the murder of Ramzan deceased."
' Some relevant excerpts from his statement during cross-examination are reproduced below:- ' "It is correct that Riaz and Mukhtar accused are real brothers. Munir accused is from their brotherhood, Bagh Ali accused is brother-in -law of Riaz accused and Sarwar accused is cousin of Bagh Ali accused. It is correct all the P.Ws. Of this case are from my brotherhood and are cultivators of my village. It is correct that all the accused are from Moeen brotherhood and are not landowners of the village."
' "We did not go especially to play cricket on 16-1-1996 on the day of occurrence, however whenever I have free time, I join the aforementioned P.Ws. In playing cricket game. I do not know if the accused present in Court have ever some bone of contention with the deceased except the cricket game dispute as stated by me in examination-in-chief. It is correct that accused and the deceased used to play cricket in the same ground since the origin of the playground in village school, and no such occasion arose previously. "
' "I cannot tell the purpose why Riaz accused abused Ramzan however it was over the cricket playing. I did not ask Ramzan deceased as to why Riaz accused abused him on the day prior to the day of occurrence. Similarly I did not ask Riaz accused as to why he was abusing Ramzan deceased on that previous occasion. I and other P.Ws. Did not give any beating to Riaz accused on the previous quarrel i.e, a day prior to the occurrence why he abused Ramzan deceased."
' "It is incorrect that Ramzan and Tariq started injuring Mukhtar accused. It is incorrect that Mukhtar accused in order to save his life, when he was sure that if he did not resist he would be killed, he inflicted injury on Ramzan deceased and Tariq injured P.W. To save his life."
7. Shabbir Ahmad (P.W-6) is an eyewitness, who supported the prosecution version. The following excerpts from his statement are relevant and are re-produced below:- ' "Riaz accused and Munir accused used to play cricket with us even previously but Riaz accused used to filthy language hence we forbade him not to play cricket with us one day prior to the occurrence. On the day of occurrence all the accused came prepared with an intention to kill Ramzan and injured Tariq. "
' "I had stated before police that we had just affixed the wickets and just to start the cricket game when accused persons came there."
' "All the P.Ws. Of the F.I.R, have their separate houses situated about at a distance of acre away of each other. All the cricket material was lying in. The shop of Khalid Mehmood P.W. Ramzan deceased came to my house and asked to for playing cricket. Then we both went to the house of Tariq and Khalid P.Ws. And took them from their houses. Then all these above named persons went in the playground. Ramzan deceased was having wickets in hand and Khalid P.W. Was having a bat in his hand. I was also having a bat in my hand when we went to the playing ground. Tariq P.W.
Was empty- handed then. Ramzan deceased installed the wickets in the playing ground."
8. Tariq Mehmood, the injured P.W. And the third eye-witness, supported the prosecution version. He also suffered injuries during the episode. The following excerpt from his statement is relevant and is re-produced below:- ' "It is correct that all the accused are Moeen. It is correct that Arain caste agriculturists are owners of the land the whole village where the occurrence had taken place. It is correct that said playground was Government land. One day before the occurrence, Ramzan, Khalid, Shabbir and I myself were present in the said playground when Riaz accused had called bad names to us. Other boys of the village were in our team at that time. The said abuses were in the name of our mothers and sisters. Ramzan deceased in reply had also called bad names to Riaz accused but I had not done so. Volunteered that he was not joined in our team. "
9. Dr. Rasheed Ahmad Bhullar (P.W.-l) had conducted the post-mortem examination on the dead- body of the deceased Muhammad Ramzan. He found the following injuries on his person;--
(1) A stitched wound crescent shape beginning from 2 c.m. Above right eye-brow upto occipital bone area (operations wound).
(2) A stitched wound 6 c.m. Long left parietal bone area (operations wound).
' The following was his opinion.
' "In my opinion cause of death in this case is due to haemorrhage and shock due to injury to vital organs i.e, brain, caused by injuries mentioned above (in MLR) are sufficient to cause death in ordinary course of life. All injuries were caused by blunt weapon and were ante-mortem as mentioned in MLC report 60/90 dated 16-1-96."
' In cross-examination he stated:- ' "In view of the information provided by the police the cause of death was cricket bat. In the column of death of Exh.PA, date and time of death was given by me as provided in the death certificate Exh.PB."
10. Dr. Zulqarnain, a Senior Medical Officer (P.W.8) at the General Hospital had examined deceased earlier on 16-1-1996 and the following were the operation notes prepared by him:-
(1) Under complete asptio measures right fronto parietal skin flap raised. Bur hole done. Bone nibbled. Nothing found extra durally. Dura opened. A huge subdural homotoma found which was sucked out. Brain was bulging outside. Homeostasis secured. Spongoston placed. Dura closed.
Wound closed in layers anticeptic dressing done.
(2) Left parietal skin incision give. Pariostium retracted. Bur hole made. Nothing extra dual or subdurally. Homostasis secured. Wound closed in layers. Antiseptic dressing done.
11. When Muhammad Ramzan was brought in an injured state, his Medico- Legal Examination was conducted by Dr. Abdur Rauf (P.W.-12) and there appears to be no contradiction in terms of the injuries found at the time of the post-mortem examination and those given by Dr. Abdul Rauf.
12. Dr. Abdul Rauf (P.W.-12) had also examined Tariq Mehmood (P.W.)and found the following injuries on his person :-
(1) Lacerated wound injuries were V shape of left side of nose bone deep 2 X 1/2 c.m.
(2) Lacerated wound left side of cheek close to the nose 3 X 1/2 c.m. Bone deep.
(3) Abraded swelling on left shoulder 6X4 c.m.
(4) Contused swelling back of left hand 6X7 c.m.
13. Muhammad Aslam, A.S-I. (P.W.13) was then posted at Ganda Singh Wala Police Station. On that day, he recorded the statement of Mahmood Ahmad (Exh.PC), on the basis of which the F.I.R. Was registered. He recorded the statement of Tariq Mehmood after clearance from the doctor. Ramzan deceased had expired on 18-1-1996 so he changed the offence, prepared his inquest report and sent the dead-body for purposes of post-mortem examination under the escort of constables. He obtained the post-mortem report, the operation notes of the deceased as well as his last-worn clothes.
14. Ghulam Raza, Sub-Inspector took over the investigation from Muhammad Aslam, A.S-I. He arrested Riaz and Mukhtar accused on 23-1-1996, effected recoveries of the wooden bat (P-2) from Riaz and wicket (P-3) from Mukhtar Ahmad. Bagh Ali and Sarwar appellants were arrested on 31-1- 1996 and Munir on 29-2-1996. Munir got recovered a wooden bat from his house on 14-3-1996. The case property was sent by him for safe custpdy in the Malkhana. On 1-3-1996 he received an application along with a Medical Certificate of Mukhtar accused. This represented the cross- version of the accused and his remarks about his investigation pertaining to cross-version are given in his testimony and the relevant excerpts from which are re-produced blow:- ' "It is correct that after consulting the file of this case it is recorded in statement^ under section 161, Cr.P.C. Of the eye-witnesses, and in the complainant Exh.PC that the occurrence in this case took place when the complainant party reached in the cricket field or ground and in the meantime the accused came there and then occurrence took place. "
' "After consulting the case diaries witness has answered that he has nowhere recorded that occurrence in this case took place when the complainant party was already busy in playing cricket. "
' "I arrested Mukhtar accused in this case on 22-1-1996. I recorded the version of Mukhtar accused as well, who stated that Mukhtar accused too was injured during this occurrence. The same version was endorsed by Riaz accused on the same day. Since no MLR was produced by Mukhtar accused so I did not probe into this fact on that date. It is incorrect that I arrested Mukhtar accused in injured condition from D.H.Q. Hospital, Kasur on the following night of the day of occurrence. It is correct that it came into my notice during the investigation that Mukhtar accused received injury during the occurrence according to his version. This fact came into my knowledge after recording the version of the accused that Mukhtar accused was also injured during the occurrence. It is correct that during the investigation of this case an order was received at P.S. Ganda Singh Wala from District Magistrate, Kasur to get Mukhtar accused re-examined. Thus I got Mukhtar accused re-examined from Medical Board while in police custody. It is correct that the Board approved the injuries sustained by Mukhtar accused."
' "It is incorrect that it was mala fide on my part to discard the cross-version and defence plea of the accused. I am not M.B.,B.S. I did not consult any doctor to. Reduce the doubt regarding the duration of injuries which Mukhtar accused sustained on his person during the occurrence."
' "It is incorrect that deceased and injured P.W.l launched murderous attack on Mukhtar accused only and he in order to save his life inflicted injuries at the person of deceased and injured P.W."
15. Maqbool Ahmad is the attesting witness of the recovery memos, while Arshad Jamal Patwari prepared the site plans (Exh.PM & Exh.PM/1.)
16. Dr. Tariq Bashir, Radiologist (DW-1) and Dr. Altaf Hussain, Medical Officer (DW-2) appeared as defence witnesses in respect of the injuries suffered by Mukhtar. Dr.'[1] Tariq Bashir was a member of the Medical Board which was constituted for re-examining the injuries of Muhammad Mukhtar and according to him, on re-examination the following observations were made by the Medical Board:-
(1) Corresponding injury No,l of first Medico Legal report there was tender lump on left parietal region hidden in the hair. X-ray skull A/P and lateral views were advised.
(2) No telltale mark corresponding injury No,2 of initial Medico-Legal report.
(3) No telltale mark corresponding to injury No, 3 of initial medical legal report.
(4) Corresponding injury No,4 of initial medical legal report where there was tender swelling on left wrist, appeared facture.
(5) Hypertrophic scat seen on the right elbow joint corresponding to injury No, 5 of initial medical legal report. X-ray report. The Radiologist D.H.Q. Hospital, Kasur vide X-ray Film No,421 to 429 dated 9-7-1996 reported as under:-
(i) No Carnial vault bony lesion seen.
(ii) Old united fracture distal shaft of left ulna seen.
' He went on to say that the opinion of the. Board was as follows:- ' "As there was a lump which was tendered also on the skull and there was old united fracture of left distal shaft of ulna which was not common size of self-suffered injuries so the injuries are genuine and a medical legal report No,64/96 dated 17-1-96 issued by the Medical Officer, D.H.Q. Hospital, Kasur in respect of Mr. Muhammad Mukhtar son of Inayat Ali was correct."
17. Dr. Altaf Hussain had also examined Muhammad Mukhtar and found five injuries on his person which were contusion and lacerated wounds, the full description of which is given in his testimony.
18. In his statement under section 342, Cr.P.C., Mukhtar Ahmad gave a counter version by stating:- ' "I am innocent. Ramzan deceased, Tariq Mehmood, P.W. And myself were playing cricket in the ground. None from other my alleged coaccused was present at there at that time. Ramzan deceased picked up quarrel with me over the turn of batting. When both of us having bats in our hands, Ramzan deceased armed with bat and Tariq P.W. Armed with wicket attacked me and started inflicting injuries upon me and I in order to save my life, acted in self-defence, caused injury to Tariq P.W. And Ramzan deceased. None from the other alleged eye-witnesses except Tariq P.W.
Was present at the time of occurrence at the spot. Complainant party has suppressed the real facts and distorted and. Concocted a false story. In consequence of the attack of Ramzan deceased and Tariq I was injured. My injuries were suppressed by the prosecution. The motive put forth by the prosecution is false one and there was no preplanning of the occurrence. It was just a sudden affair between the parties as the deceased and Tariq Mehmood had attacked me and I acted in my self-defence."
19. Bagh Ali pleaded his innocence. Muhammad Sarwar also denied having held Ramzan in claps, while Riaz inflicted blows on his person. On the allegations against Munir Ahmad that he gave bat blows on the forehead of the deceased, the case of this appellant was one of denial.
20. There is no previous enmity inter- se the parties. Who participated in the game of cricket peacefully on the cricket ground and this had been happening since a long time and which is evident from the record. The motive part of the story revolves around the question whether a dispute had arisen while the game of cricket was being played on the day of the occurrence or whether the fight of the previous day over accused Riaz's exclusion from the cricket team because of his mis-conduct, brought the parties together one after the other giving rise to the dispute and the occurrence. The clear-cut answer on this is not possible because of suppression of facts.
Anyway, the weapons used were blunt. Riaz, the absconding accused, was attributed injuries with blunt weapon on the deceased and a similar attribution was also made against Munir.
21. The injuries caused to Mukhtar accused and which were suppressed by the prosecution side, give rise to the inference that a fight had taken place on that ground between the parties which developed emotions and passions.
22. To call this an unlawful assembly armed with deadly weapons whose purpose was to assault and injure, would not be correct at all under the circumstances of this case. The use of sections 148 & 149, P.P.C, therefore, appears to be out of question and since a fight had taken place, everyone is to be made responsible for his own act.
23. We find that the prosecution had not truthfully stated all the relevant facts. It appears that '.He one day's delay which was caused in lodging the F.I.R. Provided them with the opportunity of twisting the facts. It is likely that they were convinced about their roles of causing injuries to each others in a fight and did not feel the necessity of lodging the F.I.R. Until the next day and after the death of Ramzan. With this background, we have to be skeptical about the version advanced by the prosecution. We feel that there is a probability that the prosecution has exaggerated the facts by assigning roles of Jappha to Sarwar and Lalkara and Jappha to Bagh Ali. And the possibility that they were falsely involved is there and therefore we acquit them from the charge.
24. Munir has been ascribed causing injuries to the deceased, a similar role which was attributed to the absconding accused Riaz. As we have believed the story that the occurrence had taken place during a fight and we are not prepared to believe about any premeditation having taken place under the circumstances and as provocation was the main element of the fight, we do not think in a case like one in hand and with the weapons used and keeping in view the post-mortem report, the conviction under section 302(b), P.P.C. Of Munir Ahmad is sustainable in law. This case falls under section 302(c) and we reduce his sentence from death to 10 years' R.I. He shall also gay a sum of Rs, 50,000 as compensation to the legal heirs of the deceased under section 544-A of the, Cr.P.C., or in lieu thereof, to suffer further 6 months' S.I.
25. Mukhtar Ahmad had caused injuries to Tariq Mehmood P.W. Who was been sentenced to 10 years' R.I. Along with a fine of Rs,5,000. According to the doctor, the injuries suffered by Tariq Mehmood, P.W. Were Ghayr Jaifah Damyah which are covered under section 337-F(i), P.P.C. And we reduce his sentence accordingly to 1 year's R.I. As Ta'zir and ask him to pay the Daman.
26. The appeal is disposed of accordingly. The death sentence is not confirmed and thus the Murder Reference is answered in the negative.