' M. BILAL KHAN, J.---This judgment will dispose of Criminal Appeal No,548 of 2000 filed by Zulfiqar son of Amir, Shera son of Muhammad Hayat and Fateh Muhammad son of Salehoon, Criminal Appeal No,64-J of 2000 filed by Zulfiqar son of Mehmood, Criminal Revision No,373 of 2000 filed by Muhammad Khan son of Atta Muhammad for enhancement of sentence from life imprisonment to death sentence awarded to respondents Zulfiqar son of Amir, Shera son of Muhammad Hayat and Fateh Muhammad son of Salehoon along with 'enhancement of amount of compensation from Rs,25,000 to Rs,5 lac each of the four accused/appellants including Zulfiqar son of Mehmand and Murder Reference No,151 of 2000 for the confirmation of death sentence awarded to Zulfiqar son of Mehmand appellants as all these matters arise out of the judgment dated 20-4-2000 passed by learned Additional Sessions Judge Sargodha, whereby he convicted Zulfiqar son of Mehmand under sections 302(b)/ 337A(ii) and 337-F(i)/34, P.P.C. And sentenced him to death for committing Qatli-Amd of Ghulam Rasool, and causing injuries to Mst. Nur Bhari, whereas Zulfiqar son of Amir, Shera and Fateh Muhammad were also convicted under sections 302(b)/337 A(ii) and 337F(i)/34, P.P.C. And sentenced to imprisonment for life. The above mentioned four accused .Were also directed to pay compensation of Rs;25,000 each to the legal heirs of the deceased Ghulam Rasool under section 544-A, Cr.P.C. And in default to undergo six months rigorous imprisonment each.
They were also convicted and sentenced to pay Arsh (5% of Diyat) each and also to undergo 3 years' rigorous imprisonment for committing offences under section 337-A(ii)/34, P.P.C. And also to pay Daman of Rs,2000 each and to undergo rigorous imprisonment for 6 months for committing offence under section 337-F(i)/34, P.P.C. The amount of Arsh or Daman if realized was ordered to be paid to Mst. Nur Bhari injured. All the sentences were ordered to run concurrently. The accused were also given the benefit of section 382-B, Cr.P.C. Accused Bashir, Muhammad Manzoor, Jaffar and Muhammad Nawaz were acquitted by extending to them the benefit of doubt.
2. Briefly stated the facts of the prosecution case as disclosed in the F.I.R. Are that on 20-6-1998 at about 10/11 a.m. Muhammad Khan complainant was sitting in his house along with his brother Ghulam Rasool and his sister Mst. Nur Bhari. The house of Muhammad Nawaz accused was adjacent to their house. Both the neighboured had a dispute about the construction of intervening wall where a three-foot passage existed. Shera accused asked the complainant's brother Ghulam Rasool to 'come over so that they could decide about the wall. Ghulam Rasool went towards the place of disputed wall. All of a sudden Zulfiqar son of Mehmand armed with a hatchet, Zulfiqar son of Amir armed with a Sota, Fateh Muhammad armed with, a Sota, Bashir empty-handed and Shera armed with Sota emerged at the scene. Bashir accused caught hold of the complainant as a result of which the latter fell on the ground. Zulfiqar son of Mehmand gave hatchet blow on the head of Ghulam Rasool. Zulfiqar son of Amir gave Sota blow on the right foot of Ghulam Rasool. Fateh Muhammad gave a Sota blow on the left foot of Ghulam Rasool whereas Shera accused gave a Sota blow on the right elbow of Ghulam Rasool. Mst. Nur Bhari came forward to rescue his brother but she was also given Sota and hatchet blows on various parts of her body. On hearing the noise, Khizar Hayat P.W. Was attracted to the spot who witnessed the occurrence and separated the accused persons and the accused fled with their respective weapons. The motive as set out in the F.I.R. Was a pending dispute about the wall between the complainant and the accused party. It was maintained by complainant in the F.I.R. That on account of the said grievance the. Appellants and their co-accused caused injuries to Ghulam Rasool and Mst. Nur Bhari with preconcert. Ghulam Rasool and Mst. Nur Bhari were brought to Civil Hospital Jhawarian where Ghulam Rasool succumbed to his injuries. The complainant went to Police Station Jhawarian where F.I.R. No,65 dated 20-6-1998 was recorded under sections 148/302/109/324 and 149, P.P.C.
3. After recording the F.I.R., Mazhar Ali S-I. Went to Civil Hospital Jhawarian and prepared injury statement Exh.P.D., inquest report Exh.P.E. Relating to Ghulam Rasool deceased and sent the dead body to mortuary for post-mortem examination. Mazhar Ali S-I. Also prepared injury statement of Mst. Nur Bhari Exh.P.G. He collected blood-stained earth from the place of occurrence vide memo.
Exh.P.L. He prepared rough sketch of the place of occurrence Exh.P.N. And recorded the statements of PWs. Under section 161, Cr.P.C. Last worn-clothes of the deceased were also taken into possession. On 5-7-1998 he arrested Zulfiqar son of Mehmand, Zulfiqar son of Amir, Shera and Bashir accused. Hatchet P.5 was recovered on the pointation of Zulfiqar son of Mehmand from his Kotha and taken into possession vide memo. Exh.P.K. On the day of his arrest. On the same day Zulfiqar son of Amir got recovered Sota P.4 from his Kotha which was taken into possession vide memo. Exh.P.J. Sota P.3 was also recovered on the same day on the pointation of Shera accused which was taken into possession vide memo. Exh.P.H. After necessary investigation Mazhar Ali S-I.
Challaned Zulfiqar son of Mehmand, Zulfiqar son of Amir, Shera and Bashir. According to his investigation Fateh Muhammad, Jaffar, Manzoor and Muhammad Nawaz were innocent and were placed in Column No,2 of the challan. Ch. Muhammad Siddique P.W. 11 partly investigated the case.
4. At the commencement of the trial the learned trial Court on 18-10-1999 framed a charge with four heads under sections 302/109, P.P.C., 148, P.P.C., 302/149, P.P.C. And 324/34, P.P.C. Against the appellants and their co-accused to which they pleaded not guilty and claimed: a trial.
5. During the trial the prosecution examined as many as eleven witnesses to prove its case against the appellants and their co-accused. P.W.l Shabbir Hussain deposed that he took the dead body of the deceased to mortuary. P.W.2 Farhat Abbas Head Constable stated about the delivery of blood- stained earth to the office of Chemical Examiner. P.W.3 Mushtaq Ahmad Draftsman deposed that on 24-6- 1998 he prepared site plans Exh.P.B. And Exh.P.B./l. P.W.4 Syed Nazar Abbas Medical Officer who conducted postmortem examination on the dead body of Ghulam Rasool deposed about his observations. P.W.5 Ahmad Khan Head Constable stated that he kept the sealed parcel of blood- stained earth in police Malkhana. P.W.6 Ahmad Nawaz deposed about the recovery of Sota P.3 from Shera appellant Sota P.4 from Zulfiqar son of Muhammad Amir appellant and hatchet P. 5 from Zulfiqar son of Mehmand appellant. P.W.7 Muhammad Feroze was produced to depose about the abetment provided by Jaffar, Muhammad Nawaz and Muhammad Manzoor co-accused of the appellants. P.W.8 Muhammad Khan complainant narrated his version as recorded in the F.I.R. And provided the ocular account. P.W.9 Mst. Nur Bhari the injured witness corroborated the statement of the complainant and also furnished the ocular account. P.W.10 Mazhar Ali S-I. And P.W.Ll Ch. Muhammad Siddique Investigating Officers gave details of the investigation carried out by them respectively. The evidence of P.W.4 Dr. Syed Nazar Abbas who conducted post-. mortem examination of the deceased is to the following effect:- "There was no marks of legature around the neck with staining and stiffness present (mortis present), apparently there was a wound on the top of skull up to the brain matter coming out. Also big swelling was present on right elbow joint with dislocation and fracture. There were multiple lacerated wounds (probing on right foot and shin with fracture of lower part of shinbone apparently and there were same type of wounds on left foot and shin. There was big sharp wound on top of skull cutting the scalp bone and reaching up to brain matter. Where clotted blood was found 7 x 4-1/2 c.m. Approximately) with brain matter coming out rupturing membrains also vertibras. Spinal cord was intact. 411 the organs of thorax- were intact.
' In my opinion all wounds were ante-mortem, head injury was sufficient to cause death in ordinary course of nature. Head, injury was caused by sharp-edged weapon. The rest injuries were caused by blunt-probes. The time between injuries and death was within 10/12 hours whereas between death and p.m. Was within two hours."
6. The said doctor also medically examined Mst. Nur Bhari on the same day i.e, 20-6-1998 and his observations were as under:-
(1) An incised wound on right side of scalp bone deep measuring 5 x 2.5 c.m. A mark of contusion in the form of two parallel lines, 2 c.m. Apart and 12 x 1/4 c.m. On back of chest across the vertiberal column.
(2) Multiple marks of contusions and abrasions, on lower back.
(3) Swelling on left little finger lxl c.m.
(4) Swelling on middle and index finger.
' Injury No,l was declared Shajjah-i- Muddihah, whereas injuries Nos.2 and 3 were Ghayr Jaifah Damiyah and so were injuries Nos. 4 and 5. Injury No,l was caused by sharp-edged weapon while the rest of the injuries were caused by blunt weapon. The injuries were caused within 12 hours.
7. Apart from the statements of the P.Ws., report of Chemical Examiner Exh.P.P. And report of Serologist Exh.P.Q. Were also tendered in evidence.
8. After the close of prosecution case all the accused were examined under section 342, Cr.P.C.
Their plea was one of simple denial and they attributed the case to enmity. In response to question as to why P.Ws. Deposed against them the reply of almost all of them was that the P.Ws. Were related inter se, and they had made false statement on account of enmity. The appellants and their co-accused, however, opted not to make any statement on oath. However, two defence witnesses were produced. Shahadat Ali Muharrar Head Constable Police Station Jhawarian appeared as D.W.l who produced F.I.R. Register containing F.I.R. No,71, dated 13-10-1972 under section 379/34, P.P.C. In which case Ghulam Rasool deceased along with two other persons was challaned. He also produced F.I.R. Register containing F.I.R. No,8, dated 22-1-1978 registered at the instance of one Muhammad Ramzan under sections 307/148/149, P.P.C. In which case Ghulam Rasool deceased and two others were challaned. Likewise F.I.R. No,9, dated 22-1-1973 under sections 307/148//149, P.P.C. Was produced in which case Muhammad Ramzan, Muhammad Yaqub, Atta Muhammad, Mubarak and Dosa accused were sentenced to one year rigorous imprisonment. D.W.2 Khizar Hayat Muharrar Head Constable Police Station Jhal Chakkian appeared and produced F.I.R. Register containing F.I.R. No,376 of the year 1989 in which Ghulam Rasool deceased and others were challaned under section 379, P.P.C. Read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. At the conclusion of trial the learned trial Court acquitted the appellant's co-accused namely Bashir son of Muhammad Nawaz, Muhammad Manzoor son of Dost Muhammad, Muhammad Nawaz son of Muhammad Hayat and Jaffar son of Atta Muhammad but after finding the prosecution case against the appellants to have been proved beyond reasonable doubt, convicted and sentenced the appellants as mentioned and detailed hereinabove. Hence connected appeals and murder reference before this Court.
9. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. At the very outset learned counsel for Zulfiqar son of Mehmand appellant submitted that he would not challenge the conviction but would only confine his prayer to reduction of sentence of death recorded against the appellant. He maintained that Zulfiqar son, of Mehmand appellant was not a resident of the same house and was also not connected with the motive part of the occurrence, According to the learned counsel the said appellant never called the deceased for the settlement of the dispute and while he was allegedly armed with a deadly weapon like hatchet, he gave only one blow to the deceased on the head without any repetition.
The learned counsel further contended that Zulfiqar son of Mehmand appellant did not have any relationship with the parties who were otherwise related inter se and also did not have any grievance against the complainant party on account of construction of wall, as such, there was no motive against him. The said appellant was a close neighbour of the parties and appears to have been sucked into the situation.
10. Mr. Zahid Hussain Bukhari the learned counsel appearing for the appellant Zulfiqar son of Amir, Shera and Fateh Muhammad argued that even if the prosecution story is taken to be true in toto there was no preconcert or deliberation before launching the assault. He argued that the occurrence took place at the spur of the moment and according to him it was a sudden occurrence. It being a case of sudden explosion of emotions there was no premeditation involved in the case. He argued that the role attributed to Zulfiqar son of Amir appellant was that he caused a Sota blow hitting the deceased on the right foot whereas the role attributed to Fateh Muhammad was that he caused a Sota blow on the left foot of the deceased. Likewise role attributed to Shera appellant was that he caused a Sota blow to the deceased hitting him on his right knee. He added that the injuries allegedly suffered by Mst. Nur Bhari P. W.9 were also on non-vital parts of .Her body causing nominal damage. Mr. Zahid Hussain Bukhari further argued that since it was not a premeditated affair, therefore, each one of the appellants would be responsible for his own individual act. He criticised the judgment of the learned trial Court and maintained that this vital aspect of the case was not considered by the learned trial Court and the conviction and sentence of the appellants Zulfiqar son of Amir, Shera and Fateh Muhammad under section 302(b)/34, P.P.C.
Was not sustainable.
11. We have also heard the learned counsel for the complainant in Criminal Revision No,373 of 2000.
He argued that it was a daytime occurrence and that the prosecution had proved its case to the hilt against the appellants. He has prayed for maintaining the death sentence of Zulfiqar son of Mehmand appellant but also prayed that the life imprisonment awarded to the remaining three appellants, be enhanced to death sentence. He also prayed for the enhancement of compensation from Rs,25,000 to Rs,5 lac.
12. After hearing the learned counsel for the parties and going through the record we find that Zulfiqar son of Mehmand appellant was admittedly not connected with the motive part of the story and Also did not have any dispute about the wall or about the passage as alleged by the prosecution. He was not a resident of the same house and was also not related with the accused party as well as the complainant party. From the evidence which has come on record and the attending circumstances, it appears that the occurrence had taken place at the spur of the moment or in other words it was a sudden flare up. Zulfiqar son of Mehmand appellant appears to have been sucked into the situation which was already in progress and was not of his own making; He was armed with a hatchet but gave only one blow to the deceased and despite the opportunity being available to him did not repeat his act qua the deceased. According to prosecution story it was not Zulfiqar son of Mehmand who called the complainant party for settling the dispute of wall, therefore, lack of premeditation is spelt out from the prosecution case itself and accordingly it was not a case of coldblooded, premeditated and well-thought out murder. Even the presence of a female at the scene of occurrence points towards absence of premeditation. In this view of the matter we have decided to exercise our discretion in the matter of sentence awarded to Zulfiqar son of Mehmand appellant and while maintaining his conviction , under section 302(b), P.P.C. His death sentence*is hereby converted to life imprisonment, however, there will be no change in the amount of compensation awarded against the said appellant. The benefit under section 382-B, Cr.P.C. Shall be extended to him. Insofar as the case of the co-appellant Zulfiqar son of Amir, Shera and Fateh Muhammad is concerned we have already come to the conclusion that the occurrence had taken place at the spur of the moment and there was no premeditation or deliberation involved. The said three appellants allegedly caused only minor injuries to the deceased on his feet and accordingly they cannot be burdened with the intention of causing Qatl-e-Amd of Ghulam Rasool deceased. Even otherwise the injuries of Mst. Nur Bhari were on non- vital parts of her body.
The appellants were armed with sticks and according to the prosecution story itself caused only minor damage to the deceased as also to the injured P.W. In view of the role attributed to the said appellants and the minor injuries which they allegedly caused, the intentions to kill is not spelt out.
Accordingly we have come to the conclusion that the prosecution has not been able to prove its case against the said three appellants under sections 302(b)/34, P.P.C. Therefore, we set aside their sentence and conviction under section 302(b)/34, P.P.C. And acquit them of the said charge, however, their sentence and conviction recorded under sections 337/A2/337/F1 and 34, P.P.C. Is A maintained. Since the appeals have been decided in the manner as stated hereinabove, therefore, Criminal Revision No,373 of 2000 is dismissed.
' Murder Reference No, 151 of 2000 is answered in the negative and the sentence of death passed against Zulfiqar son of Mehmand appellant by the learned trial Court is not confirmed.