MUHAMMAD RAFIQ TARAR, J.-Orangzeb (50), his son Mamraiz (20), his brother Phulla (45) and his nephews Shamira (25) and Misri (30), sons of Chanan, cultivators residents of Dhok Sanadha dakhli Katha Saghral, district Sargodha, were tried by the learned Additional Sessions Judge, Sargodha, under sections 148, 302 and 307 read with section 149, P. P. C. On the allegations that on 14th June, 1977, they formed themselves into an unlawful assembly in the area of Dera Sanadha dakhli Katha Saghral, with the common object of committing the murder of Fazal Ilahi deceased and for making murderous assault on Khan Zaman and Rab Nawaz P. Ws., and in the prosecution of that common object of the said unlawful assembly to have murdered Fazal Ilahi deceased and made murderous assault on the aforesaid P. Ws. By judgment, dated 15th April, 1979, Phulla accused was convicted under section 304 (Part I) of the Pakistan Penal Code and sentenced to rigorous imprisonment for fen years and a fine of Rs. 3,000 or in default in the payment thereof to undergo further rigorous imprisonment for one year. The fine, if recovered, was ordered to be paid .To the heirs of the deceased as compensation. Shamir, Orangzeb and Mamraiz were convicted under section 323, P.
P. C. And sentenced to pay a fine of Rs 500 each or in default to the payment thereof to undergo R.
I. For six months each. Misri accused was, however, acquitted on the benefit of doubt. The convicts have appealed. Khan Zaman complainant has filed Criminal Revision No. 539 of 1979 against Phulla, Criminal Revision No. 540 of 1979 against Misri and Criminal Revision No. 705 of 1979 against Orangzeb, Shamir and Mamraiz praying that Phulla "be convicted and sentenced to death under sec--tion 302/148/149, P. P. C.", the acquittal of Misri accused be set aside and "he may be convicted and sentenced to death under section 302,/ 149/ 148 , P. P. C." and the order of the learned Additional Sessions Judge acquitting Orangzeb, Shamir and Mamraiz of the charge of murder be revised and "they may be convicted and sentenced to death under section 148 % 302/ 149, P. P. C.". The criminal revisions were admitted to regular hearing and ordered to be heard along with the criminal appeal All these matters shall be disposed of by this judgment.
2. According to the F. I. R. The case of the prosecution is that a year prior to the occurrence Mst.
Badshahi, daughter of Fazal llahi deceased and sister of Khan Zaman complainant, was married to Mamraiz appellant. He used to beat her very often. On 14th June, 1977 at about evening time he again gave her a beating, upon which Fazal Ilahi deceased and Khan Zaman complainant went to his house to lodge a protest with him and his father Orangzeb accused, resulting in an exchange of abuses between them. Orangzeb and Mamraiz threw a challenge on the deceased and Khan Zaman complainant that they would teach them a lesson for the abuses, upon which both of them returned to their house. A short-while after, Fazal Ilahi deceased again started for the house of Mamraiz accused in order to bring his daughter to his own house. He had hardly covered half the distance when Phulla accused armed with a hatchet and other accused with lathis came there.
Acquitted accused Misri cook Fazal Ilahi deceased into his hold and Phulla gave a hatchet blow on his fore head. When Khan Zaman and Rab Nawaz tried to rescue him, Shamira and Orangzeb accused gave one soti blow each to the complainant. Mamraiz accused gave a soti blow to Rab Nawaz hitting his head. In the meantime, Sahib Khan and Sattara reached the spot and rescued the members of the complainant party. After receiving the injury, Fazal Ilahi deceased became unconscious. He was removed to Civil hospital, Khoshab, by Sahib Khan and Rab Nawaz. Khan Zaman complainant started for the police station to lodge the report. On the way, Said Amir, S. H. O.
Met him at Katha Saghral Bus Stand and he reported the occur--occurrence to him at 10-30 p.m., incorporating the above facts.
The case was initially registered under sections 148 and 307/149, P. P. C. But on the death of Fazal Ilahi deceased in the hospital on 25June, 1977, the offence was converted to one under section 302, P. P.C.
3. After recording the statement of the complainant, the Sub-Inspector prepared the injury- statement of Fazal Ilahi and sent him to the hospital for medical examination. He reached the spot at about 11-30 p. m. On for the following morning he collected some blood-stained earth from the spot and made it into a sealed parcel vide memo. Exh. P. L. Thereafter, he went to Civil Hospital, Khoshab, and recorded the statements of Mst. Badshahi and Rab Nawaz, P. Ws. Through Ruqqa (Exh. P. D.) he enquired from the doctor if Fazal Ilahi was fit to make a statement, to which he replied in the negative. On 20th June 1977, Ghulam Qadir Lambardar produced all the accused before him and he arrested them. At the time of arrest, Phulla, Shamir, Mamraiz, Orangzeb and Magri accused produced hatchet (Exh. P.3) and dangs Exh. P. 4, Exh. P. 5, Exh. P. 6 and Exh. P. 7, respectively, which he took into his possession vide memos Exh. P. M., Exh. P. N;, Exh. P. O., Exh. P. Q. And Exh. P. R., respectively. On 22nd June 1977, he again inquired from the doctor about the fitness of the deceased to make a statement, to which he again replied in the negative. After the investigation, the accused persons were challaned.
4. On. 15th June 1977, Dr. Muhammad Raees, Medical Officer, Civil Hospital Khoshab. Examined Fazal Ilahi deceased, when alive, and found an incised wound 7" x 2--" x brain deep extending from the right side of forehead upward and to the left parietal bone ; the brain matter was cut under the injury which was grievous and dangerous to life. On 25th June 1977, the same doctor conducted the autopsy on the dead body of the deceased and found the injury, referred to above, on it. In his opinion, death was due to shock and cerebral haemorrhage resulting from Injury No. I which was sufficient to cause death in the ordinary course of nature.
On 15th June 1977, the same doctor examined Rab Nawaz, P. W. And found a lacerated wound, 1--" x --" x scalp deep on the left side of head. It was simple in nature and caused by a blunt weapon.th On the same day, the same doctor examined Khan Zaman, P. W. And found a lacerated wound of the same dimension on the left side of head and a contusion mark 5" x 1" on middle of back at left.
Both the injuries were simple in nature, caused by a blunt weapon.
5. In support of its case, the prosecution examined three eye--witnesses, namely, Khan Zaman, Rab Nawaz and Sahib Khan. It also relied on the recovery of weapons at the instance of the accused persons.
6. The accused persons admitted their relationship inter se. Mamraiz accused admitted that be was married to Mst. Badshahi, daughter of Fazal Ilahi deceased, one year before the occurrence while his sister Mst. Khutija was married to Gut Muhammad, son .Of the deceased, in exchange. He stated that he was falsely implicated due to enmity. Misri accused stated that he was not present at the spot and was falsely implicated on account of his relationship with Mamraiz accused.
Shamir accused also made a similar statement. Orangzeb accused stated that he was falsely implicated due to enmity. Phulla accused came up with the version that he was not present at the spot and was falsely implicated on account of enmity. No evidence was led in defence.
7. The learned counsel for the appellants contended that the occurrence took place at sunset time and the F. I. R. Was lodged at 10-30 p. m. And this delay has not been expLalned. He further submitted that the F. I. R. Was not lodged at the police station, therefore, it should be presumed that it was made after the preliminary investigation. He further submitted that the eye-witnesses are closely related to the deceased and no witness from the vicinity of the place of occurrence was examined, therefore, the case of the prosecution is highly doubtful. The learned counsel for the State supported the judgment of the trial Court while the learned counsel for the complainant contended that the case of Phulla appellant is not covered under any Exception to section 300 of the Pakistan Penal Code therefore, the offence made out against him was one under section 302, p.
P. C. He further contended that the acquittal of Misri accused from all the charges and that of the other accused under section 302, P. P. C. Is based on insufficient reasons.
8. At the trial Khan Zaman, Rab Nawaz and Sahib Khan P.Ws. Supported the prosecution version of the occurrence. They are closely related to the deceased but this fact by itself is not sufficient to discard their evidence-. They are also related to the accused party. The daughter of the deceased was married to Mamraiz accused and the latter's sister was married to Gul Muhammad, son of the deceased, in exchange. They cannot be dubbed as interested witnesses because they had no previous enmity with the accused party. The accused persons stated that they were falsely implicated due to enmity, but they did not disclose the nature and details of the enmity so alleged by them. In cross-examination Khan Zaman complainant admitted that "Except the occurrence of motive which occurred prior to the murder of my father on the day of occurrence, we had no illwill or bad blood against the accused persons and we were living peacefully".
It is true that the F. I. R was recorded at bus-stand Katha Saghral, and not at the Police Station, and the ordinary presumption is that it was drawn up at the spot but, in the circumstances of the case, this fact is not sufficient to discard the prosecution version because the eye-witnesses had no previous enmity with the accused party and the presence of Khan Zaman and Rab Nawaz P. Ws. In the occurrence stands fully established. They were injured during the occurrence and, as would appear from the suggestions put to them, their presence at the spot was not denied by the defence. It was suggested to the complainant that after coming back from the house of the accused, he along with his father (deceased) and Rab Nawaz P.W. Started beating Mst. Khutaja.
Sister of Mamraiz; she started running towards the house of the accused and they ran after her ; many persons collected at the spot on the hue and cry ; blows were given from both sides and they suffered injuries in the melee. The suggestion was denied as incorrect. Similar suggestions were hurled on Rab Nawaz P. W. Who also denied them. The presence of Khan Zaman and Rab Nawaz is thus not open to any doubt. They are consistent that Phulla accused gave a hatchet blow on the head of the deceased; Shamira and Orangzeb gave one blow each to the complainant and Mamraiz gave a soti blow to Rab Nawaz P. W. They had no special reason to attribute the head injury to Phulla accused. Their main grievance was against Mamraiz who had been constantly maltreating the sister of the complainant. If they had been actuated by desire of revenge, they could conveniently attribute this injury to Mamraiz accused. We rare, therefore, satisfied that it was Phulla appellant who caused injury on the head of Fazal Ilahi deceased which ultimately proved fatal.
9. According to the F. I. R., the case of the prosecution was that when the complainant and the deceased went to the house of Mamraiz appellant to lodge protest with him and his father there was an exchange of abuses between the parties and the aforesaid accused threatened the complainant and the deceased that they would teach them a lesson for the abuses, upon which the complainant and the deceased returned to their house. However, at the trial Khan Zaman complainant improved his statement saying that on the day of occurrence Mamraiz appellant started beating his sister upon which he and his father went to his house and after patching up the matter, returned to their own house; a short-while after, Mamraiz accused again started beating his sister, on which his father started towards his house and was wayLald by the accused persons when he had covered half the distance. He denied having stated in the F. I. R. That when he and his father went to the house of Mamraiz an altercation followed by abuses started and Orangzeb and Mamraiz challenged them that they would take the revenge. He was confronted with the F. I. R.
Wherein it was so recorded. After going through the record, we are of the view that the version that the deceased started for the house of Mamraiz accused for the second time, is an improvement and the occurrence appears to have happened all of a sudden after the exchange of abuses when the complainant and the deceased visited the house of Mamraiz to lodge protest against his misbehaviour towards Mst. Badshahi. We, therefore, agree with the finding of the trial Judge that there was a sudden flare up without any preconcert and each accused was liable for his individual act. There was no background of enmity between the parties and they were rather closely related to each other. Phulla appellant caused only one injury to the deceased and did not repeat the blow, therefore, intention to kill cannot be inferred. He can, however, safely be burdened with the knowledge that a hatchet blow on the head was likely to cause the death of the deceased and the offence committed by him falls under Part II of section 304 of the Pakistan Penal Cods. We, therefore, alter his conviction from section 304 (Part I), P. P. C. To section 304 (Part II), P. P. C. We maintain his sentence of ten years' R. I. And in exercise of revisional powers of this Court, we enhance his sentence of fine to Rs. 10,000. The fine, if recovered, shall be paid to the heirs of the deceased as compensation. 1n default of its payment Phulla accused shall undergo further R. I. For one year. While calculating his period of imprisonment, he shall be given the benefit of section 382- B of the Code. Of Criminal Procedure, meaning thereby that the period of his detention as under- trial shall be counted towards the sentence of imprisonment.
We have already observed that it was a case of individual liability. The conviction and sentence of Shamir, Orangzeb, and Mamraiz under section 323, P. P. C. Is, therefore, maintained. The appeal and Criminal Revision No. 539 of 1979 stand disposed of in the above terms and Criminal Revision No. 705 of 1979 is dismissed.
According to the prosecution acquitted accused Misri was armed with a stick but no injury to the deceased or the P. Ws. Has been attributed to him. We agree with the finding of the trial Judge that the role ascribed to him is doubtful. We, therefore, dismiss Criminal Revision No. 540 of 1979.