' KHAWAJA MUHAMMAD SHARIF, C.J.-Having arisen out of the one and the same judgment, the Criminal Appeal No.45 of 2006 filed by Abdul Khaliq and Shamshad Ali, appellants, and Criminal Appeal No. 51/06 filed by Muhammad Irshad and Abdul Ghafar, appellants respectively, who were convicted and sentenced vide case F.I.R. No.244 of 2005 dated 7-10-2005 registered under sections 302, 337-A(ii), 337-F(i)(iv), 337-L(ii) and 148/149, P.P.C, by learned Additional Sessions Judge, Bahawalnagar vide his impugned judgment, dated22-2-2006 shall be disposed of by this single judgment. Their sentences are as follows:- ' Abdul Khaliq appellant Death under section 302(b), P.P.C.
' Fine of Rs.1,00,000 as compensation to the legal heirs of the deceased or in default thereof undergo six months S.I.
' Shamshad Ali, appellant ' Death Under section 302(b), P.P.C.
' Fine of Rs.500,000 as compensation to the legal heirs of the deceased or in default thereof undergo six months S.I.
' Muhammad Irshad, appellant Five years' R.I. Under section 337- A(ii) P.P.C., and to pay Arsh i.e. (05% Diyat).
' Benefit of section 382-B is also extended ' Abdul Ghaffar, appellant ' Five years' R.I. Under section 337-A(ii), P.P.C, and to pay Arsh i.e. (05% Diyat). Benefit of section 382- B is also extended.
' Murder Reference No.Ll of 2006 for confirmation of death sentence or otherwise by the learned trial Court shall be replied through this judgment.
2. Briefly the facts are that on 7-10-2005 at about 10-00 a.m. Abdul Khaliq accused armed with hatchet, Abdul Ghaffar armed with hatchet, Shamshad Ali armed with hatchet, Muhammad Irshad armed with hatchet and Muhammad Faryad armed with Sota within the area of Basti Punnuan Mauza Sunder Bashnoian, District Bahawalnagar along with co-accused Muhammad Iqbal and Muhammad Ahmad (since declared juvenile) formed an unlawful assembly to commit rioting in prosecution of common object caused " Qatl-e-Amd" of Sana Ullah and caused injuries on the person of Aswa r Khan, Ahmad Khan and Zaka Ullah, P.Ws, with their respective weapons constituting offences mentioned above, hence the F.I.R, was lodged against the appellant.
3. ' The investigation of the case was conducted by Muhammad Abid, Inspector/ S.H.O. Police Station, Doonga Boonga. According to his version on 7-10-2005, Zaka Ullah complainant appeared before him and he got recorded F.I.R. Exh.PH. Thereafter, he along with police party and the complainant proceeded to RHC Doonga Boonga where dead body of Sana Ullah was lying. He prepared the injury statement of the deceased Exh.PD/1, inspected the dead body of Sana Ullah and inquest report Exh.PG/3-I. He recorded the statement of Aswar P.W. And prepared his injury statement Exh.PF/1, as well. Injured were sent to DHQ Hospital Bahawalnagar for medical examination while the dead body of Sana Ullah was sent for post-mortem examination. Thereafter, he visted the place of occurrence, inspected the same, took into possession blood-stained earth, sealed it into parcel and secured vide memo. Exh.PB.1. He recorded the statements of witnesses under section 161, Cr.P.C., prepared site plan Exh. PN of the place of occurrence. After post-mortem examination, last worn clothes of the deceased comprising Qameez P1, Bunyan P2 and Chadir P3 were taken into possession vide recovery memo Exh.PC. Statements of marginal witnesses were also recorded by him. On the receipt of MLCs of the injured .And their verification by the Medical Officer, he added the offences accordingly. On 16-10-2005, he arrested Abdul Khaliq, Abdul Ghaffar, Shamshad Ali,Muhammad Faryad and Irshad along with Juvenile offenders and on 24-10-2005, Shamshad accused while in police custody led to the recovery of hatchet P4 (bloodstained) from the residential room of his house which was secured vide recovery memo. Exh.P1. On the same day i.e. 24-10-2005, Iqbal Juvenile offender got recovered Soti on his pointation while accused Faryad on his pointation got recovered Soti P5 from the residential rooms of their houses, respectively, which were taken into possession vide recovery memo Exh.PJ. He then prepared site plans of the place of recovery Exh.P1/1 and Exh.PJ/1. On 26-10-2005, accused Abdul Khaliq, accused Abdul Ghaffar and Muhammad Irshad accused, while in police custody, on their disclosure and pointation led to the recovery of Soti, P6, P7, and P8 from their residential rooms of their houses and the same were taken into possession vide recovery memos Exh.PK. Exh. PL and Exh.PM, respectively.
As such, Muhammad Ahmad Juvenile accused also led to the recovery of Soti on his disclosure from a residential room of his house which were taken into possession vide recovery memo. He also recorded the statements of marginal witnesses. Accused Abdul Khaliq and Abdul Ghaffar were found injured at the time of their arrest who were medically examined from DHQ Hospital Bahawalnagar on their own request and after completion of formal investigation, found them guilty and sent to face the trial.
4. At the trial, prosecution in order to prove its case produced fourteen witnesses while Muhammad Khan and Talib Hussain P.Ws. Were given up being unnecessary. The prosecution also placed on record relevant documentary evidence Exh.PA to Exh.PM. Learned D.D.A. Give up P.W. Allah Yar unnecessary and tendered in evidence report of Chemical Examiner with regard to hatchet Exh. PO, report of Serologist report regarding hatchet, Exh.PP, report of Chemical Examiner regarding blood- stained earth Exh. PQ and that of report of Serologist regarding bloodstained earth Exh.PR and closed the prosecution evidence. Thereafter, the statement of the accused was recorded under section 342, Cr.P.C. After conclusion of the trial, the accused were convicted and sentenced as mentioned above by the learned trial Court.
5. Learned counsel for the appellant in support of this appeal submits that all the eye-witnesses are brothers inter se and are inimical towards the appellant; that the motive alleged in the first information report by the complainant is not proved; that learned counsel submits that the allegation in the F.I.R. Was that Abdul Khaliq was armed with hatchet which is not correct. In fact, Kasi could not have been used because Danda has been recovered from him; that cause of this occurrence lies with complainant party; that there is no premeditation on the part of the appellants; learned counsel further submits that all the three witnesses had given different versions regarding the presence of the other accused except Abdul Khaliq; that Dr. Muhammad Saleem during cross-examination stated that the second injury on the person of the deceased could not have been caused while lying on the ground; that learned counsel submits that the version of the appellant Abdul Khaliq in statement recorded under section 342, Cr.P.C., in reply to question seven, that no other co-accused was present at the place of occurrence except Abdul Ghaffar; that Shamshad appellant is son of Abdul Khaliq appellant and he was not present at the occurrence and he falsely implicated in this case; that blades of the hatchet were 3 1/2 cm. While the injury shows that it was 5 c.m. So it could not have been caused by hatchet planted by the prosecution on Shamshad appellant, that as far as Abdul Khaliq appellant is concerned, it was a case of premeditation so he deserves the leniency while Shamshad requires acquittal in this case.
6. On the other, hand, learned D.D.P.P. Assisted by the learned counsel for the complainant submits that it is a case of promptly lodged F.I.R., that it is a day time occurrence; that the parties were well known to each other; learned counsel submits that date of occurrence, time of occurrence, place of occurrence and presence of the P.Ws. Have not been denied; that the complainant had taken the land on tenancy and it is also proved on record that he had the turn of water; that. Ocular account is corroborated by the medical evidence; that the appellant party had not filed any private complaint against the complainant party for the above said injuries of two appellants i.e. Abdul Khaliq and Abdul Ghaffar; that in all, there are 13 injuries on the person of the complainant party; learned counsel further added that these injuries could not have been caused by the two accused namely Abdul Khaliq and Abdul Ghaffar as the defence would not want to believe; that instead of recovery of hatchet from Abdul Khaliq, the Investigating Officer got recovered Sota; that he does not damage the prosecution case, learned counsel submits that according to him and also according to the finding of the trial Court; that was not a case of vicarious liability and it was a free fight; that merciless beating was given to the deceased which resulted into his death; learned D.D.P.P. Refers to the statement of Ahmad Khan P.W.10 at page 49 and submits that during the cross-examination it has been brought on record by the defence counsel about the presence of Shamshad appellant as under:- "Shamshad accused was on the left side of Sana Ullah when he gave . Hatchet blow on the left side of Sana Ullah"
7. We have heard the learned counsel for the parties.
8. The occurrence had taken place at 11-30 a.m. On 7-10-2005 at 10-00 a.m. The matter was reported to the police on the same day at 11-30 a.m. The distance between the police station and the place of occurrence is 8 K.M. Deceased Sana Ullah, is real brother of P.W.9 Zaka Ullah.
Prosecution produced three eye-witnesses who are brothers inter se and were also injured whereas P.W. Zaka Ullah, complainant is real brother of deceased and P.W.11 Aswara. Talib Hussain was given up. Muhammad Iqbal and Muhammad Ahmad co-accused were tried by the trial Court as Juvenile and they were acquitted. Faryad was also acquitted through this judgment by the trial Court. From the side of appellant Abdul Khaliq and Abdul Ghaffar were also injured. They were medically examined through the police by P.W.1 on 17-10-2005. There were three injuries on his person. Time between injury and examination was ten days. Abdul Khaliq appellant had one injury.
Time between injury and examination was ten days. Abdul Khaliq accused while being examined by the trial Court under section 342, Cr.P.C., while replying to question seven at page 69 of the paper book. The reply is as under:- "I have been falsely involved in this case. The real facts are that I and Abdul Ghaffar are real brothers. We used to cultivate six acres of land belonging to Noor Din on lease situated in the same Khata. Allah Ditta is owner of 7 Kanals, 16 Marlas of land. Wara Bandi of the joint land is sanctioned one. We used to take water from the complainant party at 11-00 a.m. On every Friday. On every occasion complainant party utilized our turn of water and irrigated their own land. We complained this fact before the respectables of the locality. Many Punchiyats were also convened in this respect. The complainant party is very desperate and influential one. On the day of occurrence at 11-00 a.m. I along with my brother Abdul Ghaffar co-accused went to our field to take water from the complainant party where Zaka Ullah, Sana Ullah, Aswara and Ahmad Khan being armed with hatchets and Sotas were present. They did not allow us to take our turn of water and instead of started inflicting injuries on our persons.
' A fight took place in which both the parties sustained injuries. The complainant party was aggressor, who involved our entire family members in this case by concocting a false story with the connivance of police. After the occurrence, I myself and Abdul Ghaffar my co-accused went to the police station in injured condition but police did not get us medically examined with some ulterior motive. The Medical Officer with the connivance of the complainant party aggravated the injuries of the complainant party. We were emedically examined by another medical officer on the order of learned Magistrate later on. My other co-accused persons were not present at the time of occurrence and place of occurrence. They have been involved in this case in order to widen the net. After our arrest in this case, the complainant party also occupied our land. P. Ws. Have falsely deposed against me and my co-accused due to previous dispute and relations inter se with the complainant as well as deceased."
9. To shorten the matter we may state that Abdul Khaliq was armed with hatchet but Danda has been recovered from him and why from Irshad blood-stained hatchet was recovered on 24-10- 2005 and the report of the Chemical Examiner and of the Serologist is positive in nature. We would like to mention here the relationship of the appellants with each other. Abdul Khaliq, Abdul Ghaffar are real brothers. Shamshad, Irshad sons of Abdul Khaliq appellant and co-accused Iqbal, Faryad (acquitted accused) were sons of Abdul Khaliq, Muhammad Ahmad acquitted accused is son of Abdul Ghaffar. Specific injuries to Shamshad and Abdul Khaliq with hatchet are attributed on the person of the deceased but the fact remains that Abdul Khaliq and Abdul Ghaffar were also injured in this case as mentioned above so it was a case of free fight and even it is not denied by the prosecution itself. The law regarding free fight is that the accused will be awarded to his role which he had played in the occurrence. Shamshad and Abdul Khaliq gave one injury on the person of the deceased which led to his death but as mentioned above Abdul Khaliq was also injured so these are mitigating circumstances in favour of the appellant coupled with the fact that co-accused Abdul A Ghaffar brother of Abdul Khaliq was also injured. Their injuries have been suppressed by the prosecution so these are mitigating circumstances in favour of Abdul Khaliq and Shamshad. Though their sentence is maintained under section 302(b), P.P.C., but convert the same into life imprisonment with benefit of section 382-B, Cr.P.C. Their death sentence is not confirmed. Murder Reference is replied in negative to their extent. As far as Abdul Ghaffar and Irshad are concerned, the sentence which they have already undergone is sufficient to meet the ends of justice.
10. With the observations, the appeals filed by the appellants are disposed of.
11. For the reasons recorded above, the Criminal Appeal bearing No.51 of 2006 filed by Muhammad Irshad etc. Against their conviction is disposed of accordingly.
Disposed of accordingly