JAVID IQBAL, J.-Abdul Ghani, aged 33, armed with wooden sairu, Wazir, aged 30, armed` with hatchet, and Muhammad Rafique, aged 25, armed with wooden Dhura, all sons of Umar Din and, therefore, brothers, have been convicted and sentenced vide judgment dated 21st February, 1979 of the Additional Sessions Judge, Vehari, as follows: All the three of them were convicted under section 302/34, P. P. C. For the murder of Bashir Ahmad, aged 30 and each of them was sentenced to death plus fine of Rs. 3,000 or in default to undergo two years' rigorous imprisonment with a direction that if the fine was realized, it be paid as compensation to the legal heirs of the deceased.
Abdul Ghani and Muhammad Rafique were also convicted under section 323/34, P. P. C. For causing simple injuries to Shah Muhammad P. W. 6 and Muhammad Ashraf P. W. 7 and each of them was sentenced to one year rigorous imprisonment plus fine of Rs. 1,000 or in default to undergo six months' rigorous imprisonment. The sentence of imprisonment was to come into operation if the death sentence was not confirmed. Abdul Ghani convict had one blunt-weapon simple injury on his back. The appeal of the convicts as well as Reference for the confirmation of death sentence awarded to them are being taken up and disposed of together by this judgment.
2. The occurrence took place on 22nd December, 1975 at 6-00 p. m. At the wood stall of the accused-party at Garhamore in the area of Abadi of Chak No. 100/W. B., at a distance of seven miles from Police Station Mitru, District Multan. F. I. R. Exh. P. K. Was lodged by Shah Muhammad P. W.
6. From the brotherhood of the. Deceased, on the following day i.e. 23rd December, 1975 at 8-00 a. m. And it was recorded at the Police Station by Mushtaq Hussain A. S. I., since dead, whose handwriting was proved by Zaffar Hussain S. I. P. W.
15. Initially, the case was registered against the appellants under section 307/34, P. P. C., but on the death of Bashir Ahmad deceased at 7-20 a. m.
On 23rd December, 1975 section 307, P. P. C. Was altered to section 302, P. P. C. It is evident that the deceased was removed to Nishtar Hospital, Multan in an injured condition by the injured P. Ws. And he was medically examined there by Dr. Muhammad Aslam Chaudhry P. W. 14 at 8-30 p. m. On 22nd December, 1975. Taking the medical report with him, Shah Muhammad P. W. Proceeded to the Police Station Mitru in the morning of 23rd December, 1975 and lodged the report at 8-00 a. m.
While in his absence Bashir Ahmad deceased had died in the hospital at Multan.
3. The motive for crime, as stated in the F. I. R. Is that two days prior, to the present occurrence Muhammad Ashraf injured P. W. 7, a relative of the deceased, had purchased three beams of wood from Abdul Ghani appellant and be had yet to pay the price. It is stated that Abdul Ghani appellant demanded Rs. 15 for the same whereas Muhammad Ashraf P. W. Insisted on paying Rs. 11 25 which led to a quarrel between them. It was this quarrel which eventually led to the occurrence.
4. The prosecution has produced three eye-witnesses of the occurrence, namely, Shah Muhammad P. W. 6 (injured) from brotherhood of the deceased, Muhammad Ashraf P. W. 7 (injured) relative of the deceased, and Sardar Muhammad P. W. 8 from brotherhood of the deecased. Khushi Muhammad and Khair Muhammad were cited as P. Ws. In the F. I. R. But were given up as unnecessary. However, they have been -produced from the defence side, Khushi Muhammad as D. W. 1 and Khair Muhammad D. W.
2. There is also another witness produced from the defence-side, namely, Abdul Ghani son of Abdullah D. W. 3.
5. From the record it appears that all three appellants were arrested on 25th December, 1975 by Mushtaq Hussain A. S. I., since dead. At the instance of Abdul Ghani- appellant was recovered wooden sairu P. 3 (not blood-stained) and taken into possession vide memo. Exh. P. G. Dated 25th December, 1975. At the instance of Wazir appellant was recovered hatchet P. 4 blood-stained which was taken into possession vide memo. Exh. P. H. Dated 25th December, 1975. At the instance of Muhammad Rafique appellant-was recovered wooden Dhura P. 5 blood---stained which was taken into possession vide memo. Exh. P. J. Dated 25th December, 1975. The attesting witnesses of all these recoveries are the same, namely, Fazal Ahmad P. W. 5, Ahmad Nawaz Lambardar (not produced) and Mushtaq Hussain A. S. I., since dead. Thus the prosecu--tion had examined only Fazal Ahmad P. W. 5 as the sole attesting witness in all the recoveries. According to the report of the Serologist Exh. P. U. At page 12 of the Paper Book hatchet P. 4 and wooden Dhura P. 5 were found to be stained with human blood. The recoveries have been relied upon by the trial Court which also relied upon the motive version.
6. Abdul Ghani appellant, in his statement before trial Court, has given his own version of the occurrence. According to his statement, Wazir and Muhammad Rafique appellants were not present at the time of the occurrence. On the fateful day shortly after Isha prayer time Abdul Ghani appellant was present at his wood stall at Adda Garhamore which is a very busy place.' There were two buses going to different directions present in front of his stall on the katcha portion of the road.
The passengers were purchasing eatables. He was enjoying the warmth of fire which he had kindled. Both his brothers Wazir and Muhammad Rafique appellant were present there. The deceased, who is a Palledar (labourer) of Muhammad Ashraf P. W. 7 came to him and asked him as to what money he was demanding from Muhammad Ashraf P. W. Abdul Ghani appellant told him that he had asked for the balance of payment of the price of the wooden beams. Thereupon, the deceased started abusing him and said that the money had already been paid to him. He returned the abuses at which the deceased picked up a piece of wood and threw the same at him which hit him on his back. After receipt of the blow Abdul Ghani appellant avoiding further blows from the deceased ran away towards the passengers because the deceased ran away towards the Bala from his stall and was chasing him. One of the passengers tried to stop the deceased but the deceased was furious and he also abused him and put him aside. At this 2/3 other passengers interven--ed and tried to snatch the Bala from the hand of the deceased. Meanwhile Shah Muhammad and Muhammad Ashraf P. Ws. Also arrived there and there was a scuffle in which free use of fire wood and Balas was resorted to and which resulted in the injuries to the deceased. The injury on the head of the deceased was not caused by anyone whatsoever by a hatchet. It was caused by the sharp corner of a wooden Bala. He further stated that the Medical Officer, who conducted the post-mortem examination on the dead body of the deceased had not been produced and that, therefore, he could not prove his case as he wanted to put him several questions in respect of the head injuries sustained by the deceased which was caused by a Bala blow and not by a hatchet. Similarly the Investi--gating Officer had not been produced and his case had been prejudiced seriously, because he expected that the Investigating Officer would have stated the correct story and also the version given in the defence.
The other appellants, namely, Wazir and Muhammad Rafique sup--ported the same version in their statements. They stated that they had not been present on the spot. They disowned recoveries and stated that they had been falsely implicated, because they were brothers of Abdul Ghani appellant.
Three witnesses were produced in defence, namely, Khushi Muhammad and Khair Muhammad D.
W. 1-and D. W. 2, who had origi--nally been cited in the F. I. R. As P. Ws. But were given up as unnecessary. They supported the defence version which was also supported by Abdul Ghani son of Abdullah D. W. 3.
7. In the F. I. R., the occurrence is reported to have taken place in the following manner. On the fateful day Shah Muhammad P. W. 6 was sitting with Rashir Ahmad deceased at the Arhat shop when Khair Muhammad D. W: 2 came there and informed them that the, appellants were quarrelling and having a Scuffle with Muhammad Ashraf P. W.
7. On hearing this Shah Muhammad P. W. And the deceased as well as Khair Muhammad D. W. Proceeded to the wood stall of the accused party and; witnessed the appellants armed as described above caus--ing injuries to Muhammad Ashraf P. W. Abdul Ghani appellant gave a wooden sairu blow which fell on the head of Muhammad Ashraf P. W. And thus he was injured. When the deceased advanced in order to rescue him, he was gived a hatchet blow by Wazir appel--lant which fell, on his head near the left ear and he fell down on, the ground. While he was in the fallen condition, he as given wooden Dhura blows by Muhammad Rafique appellant. In the meantime Abdul 'Ghani appellant gave wooden sairu blows to Shah Muhammad P. W. Which fell on his left fore-arm. Thereafter, Muhammad Rafique appellant gave Shah Muhammad P. W. Wooden Dhura blows. In this way, Shah Muhammad and Muhammad Ashraf P. Ws. As well as the deceased received injuries and they were rescued by Sardar Muhammad P. W. 8 and Khair Muhammad D. W. 2, as well as Khushi Muhammad D. W. 1, who all had witnessed the occurrence. The' accused-party decamped. The relatives of the three injured and the complainant-side. Took the injured to the Nishtar Hospital, Multan for treatment where Bashir Ahmad deceased in an injured condition as well as Muhammad Ashraf P. W. And Shah Muhammad P. W. Were admitted. Bashir Ahmad deceased was unconscious.
Shah Muhammad P. W. Was released from the hospital after treatment in the morning. He could not proceed to the Police Station, because it was late in the night. He lodged the report the following day when he reached the Police Station along with the medico-legal reports, of the injuries sustained by Bashir Ahmad deceased, Muhammad Ashraf P. W. And himself. As it has been pointed' out earlier, while the report .Was being dictated at Police Station Mitru by Shah Muhammad P. W. Bashir Ahmad died in the hospital at 7-20 a. m. On 23rd December, 1975.
8. Dr. Muhammad Aslant Chaudhary P. W. 14 medically examined Bashir Ahmad deceased while he was still alive at 8-30 p. m. On 22nd December, 1975 and found on his person an incised wound 2-- -x 3/10" on the left parietal area near the left ear. This injury is attributed to Wazir appellant. He also found an abrasion on front of the left thigh and a swelling on the back of the chest on the right side.
These two injuries were attributed to Muhammad Rafique appellant. In the opinion of the doctor, the first injury was caused with a sharp-edged weapon and the remaining two with blunt-weapon within a duration of three hours. The first injury was kept under observation whereas the other two injuries were found simple in nature. The patient was unconscious and remained unconscious till he died.
Dr. Ashiq Muhammad conducted post-mortem examination on the dead body of the deceased. He noted the same injuries on his person and opined that the first injury which had been caused, with a sharp--edged weapon bad damaged the skull as well as the brain and was sufficient to cause death in the ordinary course of nature. The death resulted due to shock and haemorrhage as a result of the first injury. His P. M. Report is Exh. P. M. But he-could not be examined at the trial stage as he had 'gone abroad. Needless to say that the fatal incised injury caused on the head of the deceased was attributed to Wazir appellant.
Dr. Muhammad Aslam Chaudhary P. W. Also medically examined Muhammad Ashraf P. W. 7 on.
22 December, t 1973 and found on his person a lacerated wound in left parietal area. This injury is attributed to Abdul Ghani appellant. He also noted three more injuries, namely, multiple abrasions on the back of chest, a swelling on left shoulder joint and a bruise on the right upper arm: It may be pointed out that these three injuries are not attributed to anyone in the F. I. R. Or even by the P. Ws.
All the injuries on his person had been caused with a blunt weapon and were declared as simple.
On the same day he medically examined Shah Muhammad P. W. 6 and found on his person a lacerated wound on the back of left forearm. This injury is attributed to Abdul Ghani appellant.
Three more injuries were found on his person, namely, a lacerated wound on the back of left ring finger, abrasion on the left upper arm and the swelling on the left shoulder joint. The remaining injuries are attributed to Muhammad Rafique appellant. All the injuries had been caused with blunt-weapon and were declared simple.
He stated in the cross-examination that the skull bone of Bashir Ahmad deceased was fractured and his brain was damaged. The patient was in serious shock. He also stated that this injury could not be caused by the edge of a wooden Bala. The injuries sustained by Bashir Ahmad deceased could not be self-suffered, nor could they have been caused by falling from kotha or some higher place on a sharp-edged instrument. He also stated that the injuries sustained by Muhammad Ashraf and Shah Muhammad P. Ws. May have been caused by a friendly hand.
Dr. Khurshid Nazir medically examined Abdul Ghani appellant on 26th December, 1975 at 4-00 p. m.
And found on his person one blunt --weapon simple injury on the back. Since she had gone abroad, her medico-legal report Exh. P L was proved by Mrs. Zareena Begum, Lady Dispenser P. W.
12.
It may be pointed out at this stage that the injury sustained by Abdul Ghani appellant does not find any mention in the account given by the prosecution.
9. We have heard learned counsel for both the sides and carefully perused the record. The motive, in the instant case, has been correctly relied upon by the trial Court. There was no previous background of enmity between the parties. The reason for the quarrel between them was only this that Abdul Ghani appellant had demanded Rs. 15 as price of the three wooden beams purchased by Muhammad Ashraf P. W. Whereas Muhammad Ashraf P. W. Insisted on paying to him Rs. 11.25. It appears that this led to an exchange of abuses between the parties and afterwards a scuffle. The defence version to the effect that only Abdul Ghani appellant was involved in the occurrence and that his other twe brothers namely, Wazir and Muhammad Rafique appellants were not present at the time of the occurrence is not plausible. Had it been so, then the three on the complainant side, namely, the deceased, Shah Muhammad P. W. 6 and Muhammad Ashraf P. W. 7 would definitely have an upper hand and the result might have been different. Shah Muhammad and Muhammad Ashraf P. Ws. Both were injured in the course of the occurrence according to the medical evidence and, therefore, their presence on the spot cannot be doubted. Thus, it is evident that on thend complainant side there were the deceased, Shah Muhammad and Muhammad Ashraf P. Ws. And on the accused side there were the three appellants. The scene of crime is the wood stall of the accused party and it was here that the scuffle took place. According to the prosecution as well as the defence version the pieces of wood could have been used along with a hatchet which was likely to be present on the spot in a wood stall. The complainant-party might have picked up pieces of wood and the accused party might have also picked up the weapons of offence which have been described above, in the sudden flare up which followed the exchange of abuses and scuffle. It has already been pointed out that the injury on the person of Abdul Ghani appellant which according to his own version was caused to him by the deceased does not find any mention in the prosecution version. According to learned counsel for the appellants, this had been deliberately suppressed. In any case, it finds mention in the statement of Abdul Ghani appellant which to this extent is being supported by Khushi Muhammad and Khair Muhammad D. Ws. Who had originally been cited as P. Ws. In the F. I. R. But were given up not as won over but as unnecessary. Reading the two versions together, we are led to the conclusion that the occurrence might have been started by the deceased by throwing a piece of wood which hit Abdul Ghani appellant and thereafter the accused-party attacked the complainant-side. Consequently, the occurrence started as a sudden flare up and was not premeditated in any sense of the term. In that view of the matter, it is our considered opinion that the case of the appellants was covered by Exception 4 to section 300, P. P. C. And each of them was responsible for his own act. According to the eye-witness account Muhammad Ashraf P. W. Had received a wooden sairu blow on his head caused by Abdul Ghani appellant. According to the medical evidence this is a simple injury. The other injuries found on his person, which were also caused by blunt-weapon and were simple in nature, have not been attributed to anyone. Similarly, Shah Muhammad P. W. Received blunt- weapon injuries at the hands of Abdul Ghani and Muhammad Rafique appellants and according to the medical evidence these injuries were also simple in nature. So far as the deceased is concerned, the incised head injury caused on his person with a sharp-edged weapon is attributed only to Wazir appellant and is was this injury which according to the medical evidence proved fatal. The other two injuries on his person caused with blunt-weapon are attributed to Muhammad Rafique appellant and according to the medical evidence they were declare simple. On the other side, Abdul Ghani appellant had received one blunt-weapon simple injury on the back which is attributed to the deceased. Thus, it is evident that Wazir appellant is responsible for having caused the fatal blow to the deceased in the instant case whereas the remaining two appellants, namely, Abdul Ghani and Muhammad Rafique are only attributed simple injuries.
In the light of the above discussion, we set aside the conviction as well as sentence awarded to the appellants under section 302/34, P. P. C.: and instead convict Wazir appellant under section 304, Part I, P. P. C. For causing the death of Bashir Ahmad deceased and sentence him to ten years' rigorous imprisonment plus fine of Rs. 2,000 or in default to a undergo six months' rigorous imprisonment. If the fine is realized from him, it should be paid as compensation to the heirs of the deceased. His conviction was recorded on 21st February, 1979 but he is stated to have remained behind the bars since the date of his arrest on 25th December, 1975. We, therefore, direct the Jail Authorities to give him the relief available under section 382-B, Cr: P. C. While computing his sentence of imprisonment since he has remained in jail for the past about six years. His appeal is accepted to this extent.
So far as Abdul Ghani and Muhammad Rafique appellants are concerned, the conviction of each of them only under section 323/ 34, P. P. C. For causing simple injuries to Shah Muhammad P. W. 6, Muhammad Ashraf P. W. 7 and the deceased as well as sentence of imprisonment awarded thereunder are maintained. But they have already undergone their sentence. Since they have remained in jail for a period of about six years since the date of the arrest, it is not necessary to impose the sentence of fine of Rs. 1,000 on each of them as they had also undergone a considerable period of sentence of imprisonment in lieu there--of. The result is that since Abdul Ghani and Muhammad. Rafique appel--lants have already undergone the sentence awarded to them under section 323/34, P. P. C., they should be released from jail forthwith if they are not wanted in any other case. .
The death sentence awarded to the appellants is not confirmed.