Syed Hussain Mazhar Kaleem, J.--Above titled appeals are directed against the judgment of District Court of Criminal Jurisdiction Roth dated 12-07-2007, whereby the appellants were convicted. Masood Ahmed-Appellant was awarded sentence of Qisas under Section 302 APC and one year imprisonment under Section 448 APC. Muhammad Asghar was convicted under Sections 324,337/A(2) and 448 APC and was sentenced 7 years rigorous imprisonment with Rs.1,57,561/- Arsh, 2 years simple imprisonment and one year simple imprisonment respectively. Majid and Sajid were. awarded Rs.20,000/- Zaman and' one year simple imprisonment each under Sections 337/A(2) and 337/F(1) while they were also convicted and sentenced one year rigorous imprisonment each under Section 448 APC, however, the convicts were acquitted under Sections 147/148/149 APC. Benefit of Section 382/B Cr.P.0 was also extended to them. Shan Muhammad was acquitted of the charge. A reference under Section 374 Cr.P.C. was also made by said Court for confirmation of the sentence of Qisas.
2. Brief facts forming the background of appeals and the reference are that a case under Sections 324, 147, 148, 149, 448 & 337/F was registered against the convict-appellants and acquitted- respondent on the complaint of Karamat Ullah. It was reported that the complainant was resident of Mahal Dhari. There was a dispute over a piece of land between Masood appellant and the complainant. Due to this the accused were inimical towards him. On 04-12-2005 Masood accused removed stones nearby the house of complainant. In the evening he came to know about it and on 05-12-2005 at 7:00 a.m. when Masood Ahmed came near the house of the complainant, he asked him as to why he removed the stones. This annoyed the accused, he attacked and inflicted hatchet injury at head of the complainant. He fell down. On hue and cry Nazir Begum, Rashid, Shamim Akhtar, Shoukat and Karamat were attracted to the spot. They tried to rescue the victim. In the meantime Masood, Majid, Sajid and Asghar armed with sticks entered into the Courtyard of the house of complainant. Asghar accused inflicted injury at head of Rashid with a sharp edge weapon. Sajid accused caused injury at head of Shamim Akhtar with a brick, and also inflicted injury at the hands and other parts of the body of Nazir Begum. Masood accused inflicted injury at the hands of Muhammad Rashid while Asghar accused gave him kick and fist blows. Sajid and Majid accused were alleged to have caused injuries to Karamat Hussain and Shaukat. The occurrence was stated to be witnessed by Riasat, Shafique the injured persons and other residents of the locality. On 07-12-2005 the complainant succumbed to the injuries and Section 302 APC was added.
3. After completion of investigation challan was submitted before District Court of Criminal Jurisdiction, Kotli. On completion of trial, the Court decided the case in the aforesaid manner through the impugned judgment, hence the above titled appeals and the reference.
4. The learned counsel for the appellants argued that the trial Court failed to appreciate the material in judicial manner. It was evident from the record that the occurrence was not premeditated. A sudden fight took place between the parties. Convict-appellants also susta.ned injuries during the occurrence. A counter case was registered against the complainant and others.
Important injured eye witnesses were given up and only close relatives of the deceased were examined in support of the prosecution version. True facts were suppressed. On account of prevailing enmity the story was concocted to rope the convict-appellants and others in a false case. The allegation of using hatchet against Muhammad Masood was negated by post-mortem report as the injuries found at the dead-body were caused by some blunt weapons. This was a case of free fight. There was nothing on record establishing that who initiated the occurrence.
Origin of fight and manners of occurrence were shrouded in mystery. While passing the impugned judgment the trial Court did not bother to consider the fact that there were two versions. Plea taken by convict-appellant and others was indicative of the fact that the story narrated by the prosecution witnesses was not whole truth. There were strong mitigating circumstances in favour of the convict-appellants. The post-mortem report and medico legal reports pertaining to the injured prosecution witnesses were doubtful, fake and fictitious and were of no help to the prosecution case. Thus, the conviction was not warranted in the circumstances, therefore, by setting-aside the impugned judgment the appellant may be acquitted of the charge and appeal filed by the complainant be dismissed.
On the other hand, it was argued that the occurrence took place in broad daylight. Identification of the convict-appellants and the acquitted respondent was not in doubt. They were nominated in promptly lodged F.I.R. Names of the prosecution witnesses were also mentioned therein. Role played by each of them was specifically disclosed by the complainant and was established by the eye-witnesses during trial. Allegation of causing fatal injury at the person of Ghulam Mustafa resulting into his death against Masood Ahmed was proved beyond any doubt. The role played by other convicts and the acquitted respondent was also established. Eye account given by the prosecution witnesses was corroborated by post-mortem report medico legal reports pertaining to the injured persons and recovery of weapons of offence. Presence of the parties on the place of occurrence at the relevant time was not disputed. Motive and manners of occurrence were established. The eye-witnesses successfully proved that Masood Ahmed and others came at the place of occurrence with intention to commit the offence, thus, all of them were equally responsible for committing the murder. The trial Court rightly awarded sentence of Qisas to Masood Ahmed but committed a serious legal error while acquitting Asghar, Majid, Sajid and Shan under Section 149 APC. They being members of unlawful assembly committing the offence of murder were liable to be convicted under Section 149 read with Section 302 APC. Thus, by accepting the appeal filed by the complainant they may also be punished accordingly and appeal filed by the convicts may be dismissed.
6. I have heard the learned counsel for the parties and gone through the record.
7. Since the appeals and the reference arise out of, the same case, therefore, these shall be disposed off through this common judgment.
8. The posecution case was that on 04-12-2005 Masood Ahmed convict-appellant removed stones nearby the house of complainant. Who came to know at evening time. On 05-12-2005 at 7:00 a.m., when the convict was standing at the place of occurrence complainant came there and asked him as to why he removed the stones. This annoyed him, he attacked and caused injury at his head with a hatchet The victim fell down. On hue and cry Nazir Begum, Rashid, Shamim Akhtar, Shoukat and Karamat came there to rescue him. Upon this Masood, Majid, Sajid and Asghar armed with sticks entered into the Courtyard of the house of complainant. Muhammad Asghar convict inflicted injury at the head of Rashid with a sharp edge weapon. Sajid accused caused injury at the head of Shamim Akhtar with a brick and also inflicted injuries at the hands and other parts of the body of Nazir Begum. Masood accused inflicted injury at the hands of Muhammad Rashid while Asgbar accused gave him kick and fist blows. Sajid and Majid accused were alleged to have caused injuries to Karamat Hussain and Shoukat.
9. In support of prosecution case the prosecution examined Muhammad Rasheed, Karamat Hussain, Shoukat Ali and Muhammad Riasat as eye-witnesses, Weapons of offence recovered at instance of the convict-appellants. Post-mortem report, medico legal report pei wining to the injured eye-witnesses and site-plane etc. were also produced in evidence.
10.The defence plea was that Masood Ahmed convict-appellant was owner of land bearing Khasra No.8. On 4.12.2005 the complainant party forcibly took possession of land. The convict asked as to why they did so. Karamatullah was not present there, however, the others abused him. On the following day at 7:00 a.m. the complainant again came there to inquire. Karamat Ullah abused him and opened attack. Zaheer, Arshid, Liaquat and Shaukat started beating him. He suffered injuries.
Muhammad Saghir and Wajid were attracted to the occurrence on hue and cry and were beaten by the complainant party. In support of the defence version the convict-appellants recorded their statements under Section 340 sub-section (2) of the Cr.P.C. and examined Muhammad Saghir S110 Police Station Khuiratta, Dr. Muhammad Ishaq Civil Medical Officer, Muhammad Rafique Gardawar and Kh. Abrar Hussain Patwari as defence witnesses. Injury sheets prepared by the police, medico legal reports pertaining to the convict-appellants and revenue record regarding the said land were also brought on record. While making statement Masood Ahmed convict-appellant claimed that on 04.12.2005 Karamat Ullah removed stones from his land. On the fateful day at about 6:45 AM he inquired from him upon which the deceased abused him and an unpleasantness took place between them.
Muhammad Rashid, Karamat, Liaquat, Shaukat and Arif, who were sitting in house of the deceased, came at the place of occurrence. Zaheer and Karamat Ullah inflicted stick injuries at his head. On hue and cry Muhammad Asghar convict-appellant came there, he tried to rescue but Karamat Ullah Scuffled with him. P.W Karamat Hussain gave a stick blow at his head the stick was broken afterwards he pelted stone to target Asghar but the same hit Karamat Ullah deceased and caused injury. He fell down. Later on, Majid convict-appellant came there and suffered hatchet injury at his head at the hands of P.W. Liaquat while Muhammad Rashid also caused stick injury at his person.
They reported the matter to the police. Injury sheets were prepared and they were referred to Civil Medical Officer Rural Health Centre Kotli for medical examination.
11.It will not be out of place to mention here that prosecution witnesses were related inter-se while the convict-ppellants and acquitted respondents were also closely related to each other. From perusal of the aforesaid version, it reveals that both the parties alleged each other for initiating the occurrence and causing injuries. True facts regarding origin of fight and manners of occurrence were suppressed, However, a careful consideration of the evidence shows that though an enmity was prevailing between the parties but neither the occurrence was premeditated nor the offence was committed in prosecution of common object. On the fateful day, Masood Ahmed convict- appellant was standing at the place where the occurrence took place. The deceased came there and while discussing about the disputed land the situation became unpleasant. Masood Ahmed convict-appellant caused blunt injury at head of the deceased, later on, members of both the parties arrived at the spot and a free fight took place between them, resultantly the prosecution witnesses and the convict-appellants caused injuries to each other.
12.It may be stated here that if an offender with the intention of causing death, or with intention of causing bodily injury to a person, by'doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that the, act is so imminently dangerous that it must in all probability cause death, causes death of such person is said to commit qatl-i-amd and where a persons by doing any thing which he intends or knows to be likely to cause death, causes death of any person whose death he neither intends nor knows himself to be likely to cause, such an act committed by the offender shall be intentional murder. But an act with the intention to cause harm to the body or mind of any person resulting into his death by means of a weapon or the act which in the ordinary course is not likely to cause death, does not constitute the offence punishable under Section 302 A.P.C, thus, it follows that paramount consideration establishing aim and object of an offender is the intention and weapon used for commission of the offence.
13.In the present case claim of the prosecution regarding hatchet injury was not proved. Post- mortem report was silent on the point but medico legal report pertaining to the victim Exh.PS shows that the fatal injury was caused with some blunt weapon. No evidence showing that the occurrence was premeditated or the offence was committed in order to execute some prearranged plan, or any circumstance indicating that Masood Ahmed convict-appellant was intending to commit the offence of murder was brought on record. The prosecution case was that he was standing at the spot, it was the deceased who came there, thus, the convict even cannot be alleged for initiating the occurrence.
14. As said earlier that initially an unpleasantness took place between Masood Ahmed and the deceased resultantly the convict-appellant inflicted injury at his head. Afterwards, members of both parties came there and had a free fight. The only proved fact was that while discussing the dispute regarding land the convict-appellant and the deceased entered into a tense situation.
Masood Ahmed convict-appellant lst temper and caused injury with some blunt weapon resulting into death of Karamat Ullah, thus, in our opinion it was not intentional murder and the conviction was not warranted under Section 302 A.P.0 however, the appellant was liable to be convicted under Section 316 APC.
15.So far as the case of other convict-appellants is concerned, P.W Muhammad Rashid claimed that he suffered injury at the hands of Muhammad Asghar convict-appellant. P.W doctor who examined him failed to give a definite opinion about the kind of weapon. Medical report Exh.PB shows that either it was blunt or semi sharp, thus, the allegation was not proved beyond doubt. It may also be mentioned here that Shamim Akhtar and Nazir Begum who allegedly suffered injuries at the hands of Sajid were not examined by the prosecution. Besides injuries found at the person of the convict-appellants were suppressed and in view of overall circumstances of the case we are of the opinion that since both the parties were fighting with each other, it was difficult for the prosecution witnesses to determine individual role played by each of the participants thus, ocular version in this respect was not confidence inspiring, therefore, conviction to the extent of Muhammad Asghar, Majid and Sajid appellants was not justified in the circumstances.
16.In light of the facts listed above appeal filed by the convicts is partly accepted. Muhammad Asgher, Majid and Sajid appellants are acquitted of the charge and by modifying the impugned judgment sentence of Qisas awarded by the trial Court to Masood Ahmed appellant under Section 302 A.P.0 is altered into the punishment of Diyat with 14 years imprisonment as provided under Section 316 of the APC. He shall also be entitled to benefit of Section 382-B Cr.P.C. The amount of Diyat equal to 30,630/- gm silver shall be deposited before District Court of Criminal Jurisdiction Kotli, which shall distribute it among legal heirs of the deceased according to their shares.
Resultantly, appeal filed by the complainant stands dismissed and the reference is refused.