' MUHAMMAD FARRUKH MAHMUD, J.---Munir Ahmad, Liaqat Ali, Riasat Ali, Khalil Ahmad, Shakeel Ahmad, Bashir Ahmad, Asghar Ali, Zafar Ullah, Muhammad Yaqoob, Muhammad ,Khan and Rana Muhammad Akram were tried by the learned Additional Sessions Judge, Gojra, in case F.I.R. No.211 registered at Police Station Nawan Lahore on 23-11-1997 for offences under sections 302/337- A(ii)/337L(ii)/148/149, P.P.C. Vide Judgment, dated 20-9-2001 while acquitting Riasat Ali, Liaqat -Ali, Khalil Khan, Zafar Ullah, Rana Muhammad Akram and Shakeel Ahmad, convicted and sentenced the rest of the accused as follows:--
(I) Munir Ahmad for offense under section 302(b), P.P.C. To death plus payment of rupees one lac as compensation to the legal heirs of the deceased in default whereof to undergo further S.-I. For six months;
(II) Bashir Ahmad, Asghar Ali alias Kala, Muhammad Khan and Muhammad Yaqoob for offence under section 337-A(i), P.P.C. Each on two counts for causing injuries to Muhammad Yasin and Asghar son of Nazir to undergo one year's R.I. Each on each count plus payment of Rs.5000 each, as Daman, on each count; and
(III) Bashir Ahmad, Asghar Ali alias Kala, Muhammad Khan and Muhammad Yaqoob for offence under section 337-L(ii), P.P.C. Each on two counts or causing injuries to Muhammad Yasin and Asghar son of Nazir to suffer R.I. For one year each on each count plus payment of Rs.5000 each, as Daman, on each count.
' All the sentences imposed upon the convicts were to run concurrently. They were also given the benefit of section 382-B, Cr.P.C.
2. Munir Ahmad, convict/appellant, has challenged his conviction and sentence by filing Criminal Appeal No.388-J of 2001, while the other convicts/appellants Asghar alias Kala, Bashir Ahmad, Muhammad Yaqoob and Muhammad Khan have brought Criminal Appeal No.1466 of 2001 questioning their convictions and sentences, whereas Muhammad Ashraf/complainant has filed Criminal Revision No.757 of 2001, praying for enhancement of sentences of Bashir Ahmad, Asghar Ali, Muhammad Khan and Muhammad Yaqoob. Murder Reference No.626 of 2001 seeking confirmation or otherwise of death sentence imposed upon Munir Ahmad appellant has also been placed before us. All these matters are being decided through this consolidated judgment.
3. Briefly, the facts of the prosecution case per F.I.R. Exh.PJ recorded by Abdul Rasheed, Inspector/P.W.14, at the instance of Muhammad Ashraf, complainant/P.W.9, are that on 23-11-1997, the complainant, Muhammad Asghar/P.W.10 and Zafar Iqbal-deceased were present in the Dhari of Muhammad Yasin/P.W.11, a Phuphizad of the complainant, who too was present there. As Muhammad Yasin had to irrigate his lands, he went to check the outlets. At about 1.30/2.00 p.m. On hearing the hue and cry of Muhammad Yasin, the complainant along with n brother Muhammad Asghar and Zafar Iqbal rushed to that direction and saw that in Killa No.14 of Square No.24, Muhammad Khan, Muhammad Yaqoob, Bashir Ahmad and Muhammad Asghar alias Kala, all of whom were armed with Sotas, were causing Sota blows to Muhammad Yasin, who was lying on the ground and was making hue and cry, while Munir Ahmad armed with .12-bore gun, Shakeel Ahmad armed with .30-bore pistol, Zafar Ullah, Raisat Ali, Liaqat Ali and Khalil Ahmad, empty-handed, were raising Lalkara to teach a lesson for deposing against them. When Zafar Iqbal came forward to rescue Muhammad Yasin, he was caught hold of his arms by Zafar Ullah and Riasat Ali, whereas Liaqat Ali and Khalil Ahmad held him from his legs and pulled him down. Munir Ahmad fired shot from his gun from a close range which hit Zafar Iqbal on his left buttock. Muhammad Khan, Muhammad Yaqoob, Bashir Ahmad and Muhammad Asghar alias Kala caused blows with their respective Sotas to Muhammad Asghar, hitting on different parts of his body. Meanwhile, Salamat Ali on seeing 'the occurrence came at the spot. The complainant and Salamat Ali beseeched the accused and got released Muhammad Yasin, Zafar Iqbal sand Muhammad Asghar from their clutches. All the accused, while raising Lalkaras, hurling abuses and saying that they had taught a lesson, went towards their land. While the injured were being taken to Allied Hospital, Faisalabad, and reached the Octroi Post (Chungi) at Jhang Road, Faisalabad, Zafar Iqbal succumbed to the injuries. The deceased along with Muhammad Asghar and Muhammad Yasin, both in injured condition, were taken to Rural Health Center (RHC), Nawan Lahore.
' As to the motive, it was alleged that Muhammad Asghar had got sanctioned Warabandi from Irrigation Department but the accused forcibly restrained Muhammad Asghar from irrigating his land, whereupon a criminal case was got registered by him against the accused and Muhammad Yasin was a witness in that case. Rana Muhammad Akram, Advocate, who was leading the Rajput Brotheri, in the presence of Muhammad Shafi/P.W.8, asked the accused to do away with Zafar Iqbal who was creating troubles for him. So all the above said accused, while armed with fire arms and Sotas, caused the murder of the deceased and injuries to Muhammad Yasin and Muhammad Asghar at the instance and abetment of Rana Muhammad Akram.
4. On 23-11-1997, Abdul Rasheed, Inspector/P.W.14, after registration of the case at the instance of the complainant, went to RHC, Nawan Lahore; prepared injury statement Exh.PD and inquest retort Exh.PE of the deceased and sent the dead body for post-mortem examination. The Investigating Officer (Investigating Officer) visited the spot; prepared its rough site plan Exh.PO; collected blood- stained earth from the spot and sealed the same into parcel vide memo. Exh.PL. The Investigating Officer also collected a live .12-bore cartridge P-14 left at the spot by Munir Ahmad/appellant, a magazine of .30-bore P-13 left by Shakeel-accused and an iron Seam P-12 left at the spot by Muhammad Khan-accused and took the same into possession vide memo. Exh.PK. On 2-1-1998, Rizwanul Haq, S.-I./P.W.13, arrested the appellants. On 5-1-1998, Munir Ahmad/appellant, while in custody, led to the recovery of .12-bore double barrel gun, which was taken into possession vide memo. Exh.PG. Bashir, Yaqoob, Muhammad Khan and Muhammad Asghar, the appellants, one by one led to the recovery of their respective Sotas which were taken into possession vide memo.
Exh.PH. Fida Hussain, S.-I./P.W.12, took into possession the scaled site plan Exh.PI and PI/1 of the place of occurrence from Muhammad Boota Patwari. After completion of investigation, the accused were sent up to face trial.
5. The prosecution produced fourteen witnesses in support of its case at the trail. The prosecution after tendering in evidence the reports of Chemical Examiner and that of Serologist as Exh.PP and PQ respectively closed its. The appellants in their statements recorded under section 342, Cr.P.C.
Pleaded their innocence and false implication. Asghar Ali alias Kala/appellant took up a specific plea of self defence of his person and that of his father in the following words:-- "Briefly stated that facts are that on 23-11-1997, my father Bashir and myself were taking over turn of water at 1-30 p.m. When the irrigation water reduced in the channel whereupon my father Bashir Ahmad directed me to go back along with the channel and to find out the cause of reduction of water. Shortly thereafter Yasin, Asghar son of Nazir, P.Ws., along with other attacked and started causing injuries to my father. My father raised alarm whereupon I rushed towards the room of tube-well, picked upon the licenced gun of my brother Munir co-accused from there. When I reached near my father, I was fired upon by Yasin and Asghar son of Nazir accused with their respective fire arms but I luckily escaped. Thereupon, in order to defend my own person and save my father's life, in view of the extreme danger to our lives acted in self defence and discharged a fire-shot which hit Zafar Iqbal. I too was attacked by the accused and injured. My arm was broken and so was my finger. I had no intention to kill any one and the fire was discharged simply in self defence of my father and myself. My left arm and left hand were fractured due to the injuries caused by Asghar son of Nazir, Yasin and others."
' The aforesaid version was also adopted by the other appellants with one exception that Munir Ahmad/appellant claimed that at the time of occurrence, he was attending the funeral of his nephew and was not present. In support of the defence version, Asghar Ali alias Kala and Bashir Ahmad, appellants, appeared as witnesses under section 340(2), Cr.P.C.
6. Learned counsel for the appellants submit that on the face of it, the prosecution has not told the whole truth because three persons were injured on behalf of the accused; that the accused were medically examined at 4-00 p.m., while the P.Ws. Were medically examined at 6-00 p.m.; that the post-mortem was not conducted on the same date and the same was conducted on the next date, which shows that the F.I.R. Was registered after due deliberations; that there is conflict between the medical evidence and the ocular account with regard to time and dimension of injuries; that the motive has not been proved; that tin support of the defence version Asghar alias Kala and Bashir Ahmad appeared as witnesses under section 340(2); Cr.P.C., that the P.Ws. Are closely related to the deceased; and that the prosecution case is not free from doubts.
7. Conversely, the learned counsel for the complainant submits that it is a day light occurrence, so there is no question of substitution; that the presence of the P.Ws. Yasin and Asghar could not be challenged, as they received injuries on their persons during the occurrence that even otherwise their presence has been admitted by the appellants. The learned counsel appearing on behalf of the State, while adopting the line of arguments of the learned counsel for the complainant, support the judgment passed by the learned trial Court.
8. We have heard the learned counsel for the parties and have also gone through the record of the case.
9. It is a case of two versions. The complainant' and the accused both alleged that the other party was aggressor. Three persons Zafar Iqbal-deceased, Muhammad Asghar/P.W.10 and Muhammad Yasin/ P.W.11 from the complainant side received injuries on their persons, while two of the accused Asghar alias Kala and Bashir Ahmad who is father of Asghar and Munir, appellants, received injuries the during the occurrence. Two of the injuries on the person of Asghar appellant resulted into fracture of arm and hand. Asghar Ail took specific plea of self defence of his person and that of his father. In support of the defence plea, Asghar and Bashir Ahmad, appellants, appeared as witnesses under section 340(2), Cr.P.C. The defence peal taken by Asghar appellant in his statement recorded under section 342, Cr.P.C. Was adopted by the appellants with one exception that Munir Ahmad appellant claimed that at the time of occurrence, he was attending the funeral of his nephew and was not present at the, spot. Undeniably, the hostility existed between Muhammad Yasin/P.W.11 and Bashir Ahmad B appellant over turn of water as well as drainage of water. The prosecution case revolves around the statements of Muhammad Ashraf/P.W.9, his brother Muhammad Asghar/P.W.10 (who received injuries during the occurrence) and Muhammad Yasin/P.W. 11 (who received injuries during the occurrence and is Phuphizad of P.Ws.9 and 10).
Besides being injured during the occurrence, the presence of Muhammad Asghar and Muhammad Yasin, P.Ws., is also admitted by the appellants. As far as Muhammad Ashraf/P.W.9 is concerned, he used to work in Faisalabad and in routine he used to go to Faisalabad at about 8-00 a.m. And return at about 7-00/8-00 p.m. He was in the business of furnishing the seat covers of cars. During his statement before the learned trial Court, he volunteered that it was correct that in Faisalabad Friday was observed as a holiday but he observed holidays on Sundays. He did not receive any injury during the occurrence and was present at the Dhari of Yasin on the fateful day per chance without having any business. So Muhammad Yasin in particular and Muhammad Asghar being injured are the star witnesses of the prosecution case. According to F.I.R., on the fateful day at about 1-30/2-00 p.m. Yasin left his Dhari to check the outlets, as it was his turn of water, where he was confronted by the accused who gave him a beating. So the P.Ws. Hearing the alarm of Yasin reached there. The time of turn of water was not given in the F.I.R. However, during trial, the complainant conceded that Yasin had six Killas of agricultural land and his turn of water started at 2-15 p.m. More importantly, his turn of water started after the turn of Bashir Ahmad appellant. It is also in evidence that Killa No. 14 belonging to Yasin and Killa No.15 belonging to Bashir Ahmad were adjacent and had a common water course. The witness tried to conceal the fact that being his turn of water, Bashir was irrigating his land by replying to the question that he did not know. It is also in evidence that the sanctioned warabandi was not operative, as the accused had got a stay order against it. Yasin conceded in his statement before the learned trial Court that eight days prior to the occurrence, the stay was granted against the newly sanctioned warabandi and the private warabandi was in vogue. In his statement he introduced two new motives by stating that four murders had taken place in village Nangal and in that case Habib maternal cousin of Akram, one of the accused of this case, was accused. Akram, asked him to get the compromise effected but the complainant of that case refused to enter into compromise. He further stated that drain was passing from the Ihata of Bashir Ahmad which was closed by him. They moved an application to A.C. And Tehsildar and due to their intervention the same was opened but the accused again closed that drain, upon which he got lodged a criminal case against him and Zafar Iqbal deceased was a witness in that case. He was duly confronted with his earlier statement. In F.I.R. It was stated that Asghar got a warabandi sanctioned and despite the sanction, the accused stopped Asghar from irrigating the land, whereupon Asghar lodged a case against the accused and in that case Yasin was a witness. Yasin, while stating about the motive narrated in the F.I.R., added two other motives noted above. It has already been noticed that turn of water of Yasin started at 2-15 p.m.
And till then it was the turn of Bashir Ahmad. In these circumstances, it was the complainant party who felt aggrieved, as against sanctioned warabandi the accused got an injunctive order in their favour. There was no occasion for Yasin to go at 1-30 p.m. To the outlet. It is also note-worthy that according to complainant, Yasin had a Kassi in his hand, while Yasin and Asghar, P.Ws., did not say so. In case then persons, two of whom were armed with fire arms and four of whom were armed with Dandas, were present when Yasin went to his fields, they could easily take the life of Yasin by firing at him. In their statements P.W.10 and P.W.11 suppressed the injuries inflicted upon the appellants Asghar and his father Bashir Ahmad. During cross-examination the complainant stated that the injuries were the result of scuffle but the scuffle was never mentioned in the F.I.R. Six of the accused were allegedly armed with Dandas and fire arms. They would not have allowed the empty handed persons to go near them. Muhammad Asghar/P.W., who received injuries during the occurrence, particularly stated that he was empty handed and despite the fact that the appellants were armed with deadly weapons, he succeeded in giving fist and slap blows to them. In his statement before the learned trial Court, Muhammad Yasin made improvement by stating that though he was empty handed but he gave fist blows to Asghar and Bashir, appellants. He was duly confronted with his earlier statement. As very vain attempt was made by the P.Ws. To justify the injuries to the appellants which were initially suppressed by them. According to medical evidence, Asghar alias Kala appellant received four injuries on his person. Injuries Nos. 2 and 3 resulted into fracture. Injury No.2 was declared as Jurh Ghair Jaifa Munaqqilah, while injury No.3 was declared as Jurh Ghair Jaifa Hashima. It is also note worthy that injury No.4 was caused by a sharp edged weapon. He remained admitted in RHC Nawan Lahore from 23-11-1997 to 26-11-1997. Thereafter, he was referred to Allied Hospital, Faisalabad. Such serious injuries could not be the result of slap or fist blows. Bashir Ahmad, who is father of Asghar and Munir, appellants, received seven injuries on his person. Injuries .Nos.6 and 7 were swellings on the left and right legs. X-ray was advised for injuries Nos.3 and 4. It is not on record that such injuries could be caused by friendly hand. Both injured Asghar and Bashir were examined by the doctor at 4-00 p.m. Prior to the examination of Muhammad Asghar and Muhammad Yasin on the prosecution side. Muhammad Asghar and Muhammad Yasin, P.Ws., received twelve injuries in total. All the injuries were simple in nature and were caused by blunt weapon. The time of their examination was firstly mentioned as 6-00 p.m.
And then it was over-written by 5-00 p.m. In case the accused had gone to the spot in order to take life of Yasin, then Yasin would not have been spared and would not have escaped with simple injuries. For unknown reasons the post-mortem examination of Zafar Iqbal was conducted on the next date at 11-30 a.m. Two fire-arm injuries were observed on his person. One was an entry wound caused from a very close range; while the other was exit wound. The rest of the injuries, which were four in number, were abrasions. It may be noted here that it was alleged by the P.Ws. That after Zafar Iqbal fell down, he was given Dong blows by Asghar, Bashir, Yaqoob and Muhammad Khan, appellants. All the four were acquitted of the charge of murder. No appeal against their acquittal was ever filed. The delay in post-mortem examination and the delay in lodging the report lead to inference that the F.I.R. Was recorded after due deliberations. According to F.I.R. And according to Yasin, the accused had grievance against Muhammad Asghar who had lodged a criminal case against he accused wherein Muhammad Yasin was a witness. The accused had no direct enmity with Zafar Iqbal deceased but strangely, in the instant case, they did not cause any serious injury either to Muhammad Asghar or to Muhammad Yasin but caused the death of Zafar Iqbal. It was P.W.13 Rizwanul Haq/S.-I., who had recorded the statements of the accused. He conceded that it was the first version of Bashir, Asghar and other accused that the complainant party was beating Bashir Ahmad and in order to save the life of Bashir, Asghar caused fire. The case was registered by Abdul Rasheed, Inspector/P.W.15, whose dishonesty flows from the record of the case. He admitted that he went to RHC Nawan Lahore at 6-15 p.m. And remained there till 10-30 p.m. But he denied that it came to his notice that Asghar and Bashir, appellants, were also injured and were medically examined. As against the record and statement of the doctor, he stated that it was incorrect to suggest that Asghar and his father were admitted in the RCH on 23-11-1997 and they remained admitted there till 26-11-1997. He further stated that neither the complainant party produced before him any proof of warabandi nor he asked for it. To top it all, he was shown the post- mortem report, according to which injury No.1 was entry wound caused by fire-arm, while injury No.6 consisted of three wounds of exit but he insisted that it was incorrect to suggest that there were three exist firearm wounds on the body of the deceased. He did so because he did not mention the exit wound in the injury statement Exh.PD prepared by him.
10. The upshot of the whole discussion is that the P.Ws. Have given a very exaggerated version of the occurrence: They remained unable to explain the injuries on the persons of Bashir Ahmad who is father of Munir Ahmad appellant and Asghar who is brother of Munir Ahmad appellant. The investigation conducted by Abdul Rasheed, Inspector/ P.W.14, was dishonest and partial. It was brought on record that the magazine found from the spot belonged to the pistol of Yasin P.W.; that the recovered gun P-5 was broken. As far as plea of alibi of Munir appellant is concerned, no independent witness was produced to support the same. However, the fact remains that Bashir who sustained injuries during the occurrence was his father. In these circumstances, we alter the conviction of Munir Ahmad appellant from offence under section 302(b), P.P.C. To offence under section 302(c), P.P.C. He is behind the bars for almost nine years. His sentence is reduced to the period already served out by him. In view of the circumstances of the case, the order passed by the learned trial Court under section 544-A, Cr.P.C. Is set aside in the light of the observations made by the Hon'ble Supreme Court in the case of Mairaj Begum v. Ejaz Anwar and others (PLJ 1982 SC 435).
The judgment passed by the learned trial Court is modified in the above noted terms to the extent of Munir Ahmad appellant, who would be released forthwith if not required in any other case. This appeal is partly allowed. The death sentence is Not confirmed. The Murder Reference is answered in the negative.
11. Now coming to the case of Asghar alias Kala, Bashir Ahmad, Muhammad Yaqoob and Muhammad Khan, appellants; it has been noticed by us that they were acquitted of the charge of murder and were convicted and sentenced for causing simple injuries to Muhammad Asghar and Muhammad Yasin, P.Ws. Out of the appellants Asghar and Bashir Ahmad themselves suffered injuries which were suppressed; hence, while maintaining their conviction, we reduce their sentence to the period already served out by them in jail. They are on bail. Their bail bonds are cancelled and the sureties are discharged from the liability.
12. For the same reasons, Criminal Revision No.757 of 2001 is dismissed.