Muhammad Azam (62), Allah Ditto (72), sons of Muhammad Hussain, Javaid Ahmad (47), son of Abdul Khaliq, Zahid Mahmood (33) and Muhammad Jan (23), sons of aforementioned Muhammad Azam, appellants, Dhamial by caste, residents of village Mohra Hanss, Distt.
Rawalpindi were challaned to the Court of Session, Rawalpindi in a case F.I.R. No, 57 dated 27.4.2002 registered with Police Station Rawat, Distt. Rawalpindi to stand trial on the charge of rioting, attempted murder and murder. On conclusion of trial, a learned Addl. Sessions Judge, Rawalpindi convicted and sentenced the appellants as under:-- U/Section 302(b)/34 P.P.C.: Imprisonment for life each and also to pay Rs, 50,000/- each as compensation to the legal heirs of the deceased or in default to suffer simple imprisonment for four months each.
U/Section 324/34 P.P.C.: Four years rigorous imprisonment each.
Both the sentences were directed to run concurrently and benefit of Section 382-B Cr.P.C. was also extended.
2. Fazal Karim was the first informant who lodged the F.I.R., Ex.PH. on 27.4.2002 at 9.30 p.m. with an allegation, in brief that while returning home from village Pind when he reached near village graveyard at 6.00 p.m. Allah Ditta, Muhammad Azam, Zahid Mahmood, Muhammad Jan and Muhammad Javaid, appellants armed with hatchets confronted him and opened attack.
Muhammad Javaid, appellant delivered hatchet blow which struck the complainant on the back side of his head. Thereafter all the above named appellants gave him beatings as a result he sustained injuries on his shoulder and ribs. The injured complainant Fazal Karim raised alarm which attracted his brother Ulfat Hussain, son Muhammad Ilyas, wife Mst. Sakina Bibi and daughter Mst.
Shabnum Bibi who all were present in a nearby field. Muhammad Javaid, appellant gave hatchet blow which landed on the head of Ulfat Hussain followed by a hatchet blow by Zahid Mahmood, appellant which also struck him on the head. Thereafter Muhammad Jan, appellant hit Ulfat Hussain on his arms with hatchet. Zahid Mahmood, appellant gave hatchet blow to Muhammad Ilyas on his head while hatchet blow by Allah Ditta, appellant hit him on left wrist joint. In the meantime Mst. Sakina Bibi, P.W. was assaulted by Muhammad Azam, appellant as a result she sustained injuries on her left shoulder and the back. Mst. Shabnum was belaboured by Muhammad Javaid, appellant: Ulfat Hussain and Muhammad Ilyas, injured became unconscious at the spot and were removed to the hospital for treatment. Motive for the occurrence was stated to be an earlier altercation between Muhammad Jan, appellant and Mst. Sakina Bibi, injured P.W.
3. Initially this case was registered under Section 324/148/149 P.P.C. Ulfat Hussain succumbed to his injuries in the hospital on 28.4.2002 at 1.20 a.m. and it became a case of murder.
4. During course of investigation as well as at trial, the accused persons/appellants denied the prosecution version and pleaded innocence by saying that in fact the deceased and the injured P.Ws. made aggression and that the appellants acted in self defence of their person. For facility of reference the counter version put forward by Muhammad Azam, appellant in an answer to a question under Section 342 Cr.P.C. is reproduced below in verbatim: "It is correct that my son Muhammad Jan had cut the Beri tree wherein Mst. Sakina Bibi wife of Fazal Karim P.W. insulted him and they grappled each other. While losing self-control he slapped her, however, the matter was patched up in the village and it was not reported to the Police Station. In fact, this incident developed grudge and grouse in the mind of the complainant party including the deceased Ulfat Hussain and motivated them to launch attack on us and the complainant party then subjected us to aggression as they were flared up when my son Muhammad Jan co-accused disgraced the lady of the complainant party and they got provoked. "
5. Muhammad Azam, appellant sustained nine injuries with a blunt weapon while Allah Ditta, appellant suffered six injuries with blunt weapon. The injured appellants got registered cross case against the complainant party. Feeling dissatisfied with the result of investigation in that case the accused persons-appellants filed a private complaint against the injured P.Ws. and others with an allegation in line with the defence version reproduced above. Admittedly trial against the complainant party of this case in the private complaint case is in progress in the Court of area Magistrate.
6. This is a case of version and counter version. At the cost of repetition. I find it convenient to bring on record that the appellants were prosecuted by the complainant party for having killed Ulfat Hussain and for having made-murderous assault on the above named P.Ws. The accused persqns introduced defence version to the effect that they killed Ulfat Hussain, deceased and caused injuries to the P.Ws, in exercise of their right of self defence of person. A combined examination of the version and counter version by placing them in juxtaposition have given rise to the following questions for determination:--
(i) Whether the appellants opened attack on the complainant party in the alleged manner, killed Ulfat Hussain and made murderous assault on the above named injured P.Ws?
(ii) Whether the deceased and the injured P. Ws. made aggression upon the appellants and they in exercise of their right of self defence of person killed Ulfat Hussain and caused injuries to the P.Ws?
(iii) Whether both the sides suppressed material facts touching the incident and attempted to minimize their respective role, in the occurrence by introducing reshaped versions?
(iv) Whether it was a free fight between the parties in which persons from both sides sustained injuries at the hands of each other and one of the injured belonging to the complainant party suffered death?
7. Admittedly, both sides have been presenting their respective case and cause before the trial Magistrate since inception of trial in the private complaint. In other words the trial Magistrate is required to answer the above said four questions as and when he finally decides the complaint case. Any observation or finding by this Court while answering the above said points/questions would certainly adversely affect, the case and cause of either side pending adjudication before the area Magistrate. Here, I must say that the State case in hand and the private complaint case by the appellants containing their defence version should have been tried side by side and decided by one Court on one date to avoid conflicting judgments. In the circumstances, this Court has been left with no other option but to remand the case for, its fresh decision alongwith the above said private complaint case.
8. I, therefore, accept this appeal, set aside the impugned conviction and sentence imposed on the appellants vide judgment, now under challenge and remand the case to the learned Court of Session, Rawalpindi for re-writing of judgment.
9. The private complaint case between the parties is withdrawn from the Court of learned area Magistrate and is made over to the learned Court of Session. Rawalpindi for its disposal in accordance with law alongwith the State case, which stands remanded in the above terms.
10. Needless to add that the reasons which weighed with the learned trial Court while recording impugned conviction and sentence of the appellants would not prejudice the mind of the Court while rewriting the judgment under the remand order.
11. The case was registered in the year 2002. It has been remanded in the year 2009 without any fault on the part of the parties. In this view of the matter, the trial Court is directed to decide the cross cases by or before 30.4.2009 under intimation to the Deputy Registrar (J) of this Bench.
12. Muhammad Azam and Allah Ditta, appellants were admitted to bail by this Court. They are allowed to remain on bail before the trial Court subject to furnishing fresh bail bond in the sum of Rs, 1,00,000/- each with one surety each of the like amount to the satisfaction of the trial Court.
13. Crl. Revision No, 163 of 2004 filed by the complainant seeking enhancement of the sentence of the appellants in the circumstances stands disposed of as having become infructuous.