The appellants namely Nazeer Ahmad, Fareed, Muhammad Iqbal, Rafique and Allah Ditta were tried by Syed Muhammad Mumtaz Hussain Shah, learned Sessions Judge, Muzaffargarh, in case FIR No, 30 registered on 17.2.1994 at Police Station Chowk Sarwar Shaheed, Tehsil Kot Adu, for offences under Sections 302/148/149 PPC. Vide judgment dated 22.9.1996, the learned trial Judge convicted and sentenced them as follows:-- (a)Nazeer Ahmad for offence under Section 302(b) PPC read with Section 149 PPC to imprisonment for life plus payment of Rs, 2000/- as compensation to the legal heirs of the deceased, in default whereof to further suffer R.I. for six months; (b)Fareed, Muhammad Iqbal, Rafiq and Allah Ditta for offence under Section 302(c) read with Section 149 PPC to undergo R.I. for ten years each plus payment of Rs, 2000/- each as compensation to the legal heirs of the deceased, in default whereof to further suffer R.I. for six months; (c)Nazeer, Fareed, Muhammad Iqbal, Rafiq and Allah Ditta for offences under Sections 148/149 PPC to undergo R.I. for one year each plus payment of Rs, 2000/- each as fine, in default whereof to further suffer R.I. for six months. The fine, if realized, was to be paid to the legal heirs of the deceased.
All the sentences were to run concurrently. Benefit of Section 382-B Cr.P.C. was given to the convicts.
2. Aggrieved by their above noted conviction and sentence, all the convicts/appellants have filed the instant appeal, while Ghulam Qadir, complainant/petitioner, has brought Criminal Revision No, 144 of 1996 seeking enhancement of sentence of the convicts. Both these matters are being decided together through this single judgment.
3. Brief facts of the prosecution case per FIR Ex.PC, recorded on 17.2.1994 at 5.30 p.m. at the instance of Ghulam Qadir complainant/PW-4, are that on 12.2.1994, the complainant along with his family members was present in his house, while his son Abdul Rahman was sleeping in the Baithak, whereas Ghaus Bakhsh/PW-5 and Mauladad (given up PW) were available in the nearby land in connection with cultivation purposes, when at about 11.30 a.m. the appellants namely Nazeer armed with .12-bore double barrel gun, Fareed, Rafiq, Iqbal and Allah Ditta armed with Sotas, entered into the complainant's Baithak and forcibly tried to take away Abdul Rahman towards their Dera, whereupon Abdul Rahman raised hue and cry, upon which the complainant and above noted PWs tried to rescue him from the clutches of the appellants, when Nazeer, while pointing his gun towards them, threatened with dire consequences and as such, due to fear the PWs did not intervene but followed the appellants, who laid him on the ground with his face downwards at a distance of eight/nine acres towards north side of stock of wheat chaff. Allah Ditta/appellant sat on the back of Abdul Rahman towards his head carrying him by his arms, while Fareed/appellant caught hold of his both legs. Iqbal and Fariq, appellants, gave Sota blows to him, whereas Nazeer/appellant caused him blows with the Butt of his gun. The alarm raised attracted the people at the spot. Nazeer/appellant asked to bring respectable, whereafter Abdul Rahman would be handed over to the complainant party. Abdul Rahman was handed over to the complainant party on the asking of Muhammad Abdullah. The complainant with the assistance of Ghaus Bakhsh/PW- 5 and Mauladad took Abdul Rahman in injured condition in a wagon to Chowk Sarwar Shaheed Hospital, where the doctor was not available; therefore, the injured was taken to the private clinic of Dr. Ghulam Fareed Bhatti/PW-7, who gave treatment to the injured fora four days and then on 15.2.1994 expressed his inability to give further medical treatment to him, whereupon the injured was taken to Civil Hospital Chowk Sarwar Shaheed where the doctor issued medical certificate and advised to take the injured to Nishtar Hospital, Multan. On 16.2.1994, the injured was got admitted in Nishtar Hospital, Multan, where he succumbed to the injuries on 17.2.1994 at 10.00 a.m. whereafter the dead body of the deceased was brought in a wagon to police station. The complainant could not report the matter due to mental agony.
Motive behind the occurrence was that the appellants had suspicions that Abdul Rahman had made gestures of `SALAIVI' to their paternal cousin Mst. Waziran/CW-1 and due to that, the appellants in furtherance of their common intention caused injuries to the deceased, which resulted into his death subsequently. Dr. Ghulam Fareed Bhatti/PW-7 and the doctor of Civil Hospital, Chowk Sarwar Shaheed had been stopping the complainant from reporting the matter to the police by satisfying him that the injured would be recovered.
4. On 17.2.1994, Ghulam Qadir, complainant/PW-4, appeared before Muhammad 1amzan, SI/PW-9, and while producing death slip Ex.PL, receipt of Eidhi Ambulance Ex.PM and medico legal certificate of Abdul Rahman and his dead body, got recorded his statement Ex.PC. The SI/IO prepared injury statement Ex. PN and inquest report Ex.PO and sent the dead body to THQ Hospital, Kot Adu, for post-mortem examination. He then visited the spot; prepared its rough site-plan Ex. PP. On 25.2.1994, one Wahid Bakhsh produced all the appellants before the JO, who arrested them. On the same day, Nazeer/appellant, while in custody, led to the recovery of double barrel gun P-5, which was taken into possession vide memo. Ex.PD, attested by Ghaus Bakhsh/PW-5 and Mauladad (given up PW). Rafiq/appellant, while in custody, on the same day led to the recovery of Sota P-6, which was taken into possession through memo. Ex.PE, attested by the same witnesses, Sota P-7 got recovered by Rafiq/appellant was taken into possession vide memo. Ex.PF, attested by the aforesaid witnesses. Sota P-8 recovered at the instance of Iqbal/appellant was taken into possession through memo. Ex.PG, attested the above noted witnesses. On the same day, Allah Ditta/appellant, while in custody, led to the recovery of Sota P-9, which was taken into possession through memo. Ex.PH, attested by the same witnesses. After completion of investigation, both the appellants were sent up to face the trial. As they denied the charge and claimed trials; therefore, the trial commenced.
5. To substantiate its version at the trial, prosecution produced nine witnesses. Haji Ghulam Qadir, complainant/PW-4, and Ghaus Bakhsh/PW-5, who are respectively father and brother-in-law (sister's husband) of the deceased, furnished the ocular account. In addition to that, they also stated about the motive. PW-5 also testified the recoveries of weapons of offence effected at the instance of the appellants. Dr. Ghulam Fareed Bhatti, a private medical practitioner/PW-7, stated that he gave medical treatment to Abdul Rahman from 12.2.1994 till 15.2.1994, on which date he referred him to Nishtar Hospital, Multan. His detailed report in regard to treatment of Abdul Rahman is Ex.PJ. Dr Muhammad Khizar Hayat/PW-3, who, on 15.2.1994, medically examined Abdul Rahman, while observing six injuries: Injuries No, 1, 2 and 3 consisted of contusions on left flank and back of right thigh, Injuries No, 3 and 4 consisted of multiple contusions on left and right buttock respectively and Injury No, 6 consisted of a contused abrasion on the right leg, opined, vide his detailed report Ex.PB, that Injuries No, 1 and 2 were kept under observation, while the rest of the injuries were simple in nature, caused by a blunt weapon within the duration of four to five days. Dr Bashir Ahmad/PW-8, who, on 18.2.1994 at 11.00 a.m., conducted post-mortem- examination on the dead body of the deceased, while observing six injuries, as found by the doctor/PW-3, opined that cause of death was Injuries No, 1 and 2 and on opening the abdominal cavity right kidney was found severely injured, as damage to both kidneys led to loss of renal function completely, which caused death. According to him, Injuries No, 12 were sufficient to cause death in the ordinary course of life, while Injuries No, 3 to 6 were simple in nature. He further opined that all the injuries were caused by a blunt weapon. The duration between the injuries and death was within four to five days; while between death and post-mortem examination the same was within twenty to thirty hours, Muhammad Ramzan, SI/PW-9, stated about the registration of the case and the investigation thereafter. The rest of the evidence, being formal in nature, need not be discussed.
6. After closure of prosecution evidence, the statements of the accused/appellants were recorded, wherein they pleaded their innocence and false implication. However, Nazir Ahmad/appellant, took up the plea of saving the person and modesty of Mst Waziran/CW-1, his step sister, in the following words:-- "I am innocent. I and my co-accused namely Muhammad Iqbal, Rafiq, Fareed and Allah Ditta did not cause injuries to the deceased on 12.2.1994 at 11/11.30 a.m. nor we lifted Abdul Rahman from his Biathak. Even no occurrence took place on the said date. Muhammad Iqbal and Rafiq are my real brothers while Fareed accused is my step-brother and Allah Ditta co-accused is my first cousin.
Mst. Waziran is my step-sister i,e, from the womb of Mst. Bhiranwan, my mother. Mst. Waziran also used to live with me, Muhammad Iqbal and Rafiq co-accused along with Mst. Bhiranwan in the same house. On 10.2.1994 i,e, two days prior to the alleged occurrence, Mst Waziran went out of the house to collect fire woods from nearby at the evening time. I was also present in the house. I heard the shrieks. I immediately rushed out of the house and saw that Abdul Rahman deceased had made Mst. Waziran to lie on the ground and he was trying to commit illicit sexual intercourse with her. Having witnessed this position, I immediately picked up stock from nearby to save the person and modesty of Mst. Waziran and caused injuries to Abdul Rahman with the stick who fled away from the place of occurrence and could not be captured."
The other appellants even denied their presence at the spot and relied upon the statement of Nazeer Ahmad/appellant. However, none of the accused/appellants made statements under Section 340 (2) Cr.P.C. nor produced any witness in defence. The learned trial Court also recorded the statement of Mst. Waziran as CW-1, who stated that two days prior to commencement of Holy month of Ramzanul Mubarak, she went outside her house to lift woods at Maghribwela, when Abdul Rahmandeceased emerged there and held her in his clasp. Abdul Rahman fell her on the ground and attempted to remove her clothes. Upon her alarm, her brother Nazir Ahmad reached there.
Nazir Ahmad picked up a stick and delivered blows with the same on Abdul Rahman whereupon Abdul Rahman fled away.
7. Learned counsel for the appellants contends that it is a case of two versions: one put forth by the prosecution and the other by Nazeer Ahmad/appellant; that the version introduced by the appellants is true or nearer to the truth and befits in the circumstances of he case; and that the medical evidence is in conflict with the ocular account and does not support the prosecution case.
8. Conversely, the learned DPG, assisted by the learned' counsel for the complainant, has defended the impugned judgment, contending that the prosecution has proved its case against the appellants through ocular account, supported by the medical evidence, motive and the recoveries of weapons of offence at the instance of the appellants.
9. Arguments heard. Record perused.
10.According to FIR, the allegation against Fareed and Allah Ditta, appellants, is that they caught hold of the deceased from his legs and arms, when he was laid on the ground with his face downwards and Allah Ditta sat on the back of the deceased towards his head capturing his both arms, while Fareed caught hold of his both legs without causing any injury to him but according to medical evidence furnished by Dr. Muhammad Khizar Hayat/PW-3, when a person is lying with his face downwards and another person overpowers him by catching his both arms and sitting on the lumber area, it is not possible to cause any injury on the flank area by blunt weapon. This conflict between the ocular account and the medical evidence creates doubt as to the participation of Allah Ditta and Fareed appellants. Thus by giving them the benefit of doubt, the instant appeal to their extent is allowed; the impugned judgment qua them is set aside and they are acquitted of the charge. They are on bail and shall stand discharged of the liability of their bail bonds.
11.Now coming to the case of Nazir, Rafiq, Iqbal. Nazir Ahmad/appellant has taken specific plea that he had caused injuries to deceased under grave and sudden provocation because on hearing shricks of Mst. Waziran/CW-1, his step-sister, he immediately went out of his house and saw that the deceased had made her to lie on the ground and was trying to commit illicit sexual inter- course with her, whereupon he picked up stick from nearby to save her person and modesty and caused injuries with it to the deceased who fled away from the spot. This version of Nazir Ahmad/appellant is supported by Mst. Waziran, who appeared as CW-1. But it is interesting to note that Mst. Waziran, while appearing as CW-1, made improvements in her statement and she was duly confronted with her earlier statement. The motive is admitted by both the parties but in different manners. Both the parties have not come with whole truth. When both the parties suppress the true facts, then this Court is competent to draw its own inference from the facts and circumstances of the case. According to prosecution, all the appellants forcibly took the deceased to their Dera and made him lie there on the ground. Allah Ditta and Fareed, appellants, caught hold of him by his arms and legs, while the other appellants caused injuries to him with their respective weapons but this version of the prosecution stands falsified by the medical evidence furnished by PW-3, as, according to him, the injuries on the flank could not have been caused in such situation.
On the other hand, Dr. Bashir Ahmad/PW-8, who conducted post-mortem examination on the dead body of the deceased, opined the cause of death was Injuries No, 1 and 2 as well as the damage to both kidneys which led to loss of renal function, resulting into death. There is yet another aspect of the matter. According to prosecution, the occurrence took place on 12.2.1994 at 11.30 a.m., while according to defence it.took place on 10.2.1994, i,e, two days prior to that. According to admission of doctor/PW-8 in his cross-examination, the possibility of duration of the injuries upto six or seven days also existed, meaning thereby the occurrence had taken place as claimed by the Appellant Nazir Ahmad. It is also not out of place to mention here that Mst. Waziran made improvements in her statement while appearing as CW-1, and she was duly confronted with her earlier statement. Further-more, the FIR in this case was got recorded with a delay of five days, which also. shows that the complainant party had realized that the deceased was at fault and when the deceased died, the story was crooked up after due consultations and deliberations.
12. The resume of the above discussions is that occurrence took place on the date as claimed by the defence in order to save the person and modesty of Mst. Waziran and the appellants Nazir Ahmad, Rafiq and Iqbal caused injuries to the deceased. The injuries caused by Nazir Ahmad on the flanks of the deceased contributed towards the death of the deceased, while the injuries caused by Rafiq and Iqbal on the buttocks of the deceased were found simple in nature. The weapons used in the occurrence were Sotas, which are commonly available at every place in the villages. The use of such weapons and the circumstances of the case show that the occurrence was not the result of premeditation, rather it took place due to sudden flare up at the spur of the moment, which subsequently contributed towards the death of the deceased. In these circumstances, the offence committed by Nazir Ahmad, Rafiq and Iqbal, appellants, falls within provisions of Section 302 (c)PPC. Accordingly, the conviction of Nazir Ahmad/appellant is altered from offence under Section 302(b) PPC to offence under Section 302(c) PPC. Since the injuries caused by him resulted into the death of the deceased therefore, he is sentenced to undergo R.I. for ten years. He is given the benefit of Section 382-B Cr.P.C. He is on bail. He be taken into custody forthwith and sent to jail to serve out the remaining sentence.
13.As regards Rafiq and Iqbal, appellants, since they caused injuries to the deceased on the buttocks, which have been found simple in nature. The record reveals that both of them have already undergone four years of their sentence. In view of the nature of the injuries attributed to them, I, while maintaining their conviction under Section 302 (c) PPC, reduce their sentence to the period already undergone.
14.Since the deceased invited the trouble himself; therefore, the order of the learned trial Court under Section 544-A Cr.P.C. in regard to imposition of compensation upon the appellants is set aside. The appellants Rafiq and Iqbal are on bail. They are discharged of the liability of their bail bonds.
15.For the same reasons, Criminal Revision No, 144 of 1996 seeking enhancement of sentence of the convicts/respondents is found to be devoid of any force and the same is dismissed.
16.After hearing the learned counsel for the parties. I had announced the judgment by issuing a short order and these are the reasons for such order.