Ahmad Raza Gilani, J.--Tariq Mehmood, Khalid Mehmood, Babar, Yasir sons of Mushtaq Ahmad, Luqman s/o of Tariq, Iftikhar s/o Muhammad Sharif and Zeshan Iqbal s/o of Muhammad Iqbal faced trial in case FIR No. 346/2006 u/S. 302/324/337-F(ii)/337-C/109/148/ 149, PPC Police Station Sabaz Peer lodged on the complaint of Muhammad Azhar, to dislodge the following charges: Firstly: That on 09.09.2006 at about 9.00 a.m. in the area of village Chobara falling within the jurisdiction of Police Station Sabazpir you while armed with churries formed an unlawful assembly with intent to commit rioting thereby you committed an offence punishable u/S. 148, PPC which is within the cognizance of this Court.
Secondly: That on the same date, time and place and in the said manner in prosecution of common object of said unlawful assembly, you above mentioned accused committed the Qatl-e- Amd of Amanat Ali deceased and thereby you committed an offence punishable u/S. 302 read with Section 149, PPC which is within the cognizance of this Court.
Thirdly: That on the same date, time and place and in the same manner in prosecution of common object of said unlawful assembly you all alongwith your co-accused also caused injuries with churri on the person of Mudassar PW, brother of complainant with such intention and knowledge that if by that injuries his death has been caused would be guilty of his murder and thereby you committed an offence punishable u/S. 324/337-A(ii)/337-L(ii)/149, PPC which is within the cognizance of this Court.
Fourthly: That you Iftikhar accused conspired with your co-accused including others to commit the murder of Amanat Ali deceased and caused injuries to Mudassar PW and your abetment/conspiracy was acted upon and thereby you committed an offence punishable u/S. 109, PPC read with Sections 302/324, PPC which is within the cognizance of this Court.
Trial Court vide judgment dated 03.02.2009 held Tariq Mehmood guilty of Qatal-e-Amd of Amanat Ali deceased and was accordingly convicted u/S. 302(b), PPC, Tariq Mehmood was awarded life imprisonment and he was also directed to pay Rs.3,00,000/- as compensation in terms of Section 544-A, Cr.P.0 to the legal heirs of Amanat Ali deceased. In case of default, he was also directed to undergo for rigorous imprisonment for six months but was acquitted of the remaining charges.
Vide the same judgment, Luqman co-accused of said Tariq Mehmood was convicted u/S. 337-F(ii), PPC for causing injuries to Mudassar Ali and accused Luqman was awarded three years imprisonment as Ta'zir, Luqman was also directed to pay Daman Rs.5,000/- to the injured Mudassar Ali. However, said accused was also acquitted of the remaining charges. Benefit under Section 382-B, Cr.P.C. was extended to both the convicts Tariq Mehmood and Luqman. Trial Court acquitted Khalid Mehmood, Babar, Yasir, Iftikhar and Zeshan Iqbal by extending them benefit of doubt.
Convicts Tariq Mehmood and Luqman had challenged their convictions and sentences through separate Criminal Appeals No. 297 of 2009 and 360 of 2009 respectively. Complainant of the case Muhammad Azhar had challenged acquittal of accused persons Khalid Mehmood, Babar, Yasir, Iftikhar and Zeshan Iqbal through Criminal Appeal No. 392 of 2009. He had also filed Criminal Revision No. 146 of 2017 seeking therein enhancement of life imprisonment awarded to Tariq Mehmood by the trial Court, to death sentence.
2. Briefly stated the facts of case are that on 09.09.2006 at 9.00 a.m. Tariq, Khalid alias Khala, Babar alias Babri, Yasir alias Bhari sons of Mushtaq, Luqman son of Tariq, Zeshan son of Iqbal caste Rajpoot r/o Deh armed with Churries, Mushtaq Ahmad son of Allah Rakha empty handed while raising lalkara came in front of their Khokha on metal road. His father Amanat Ali beseeched to them. At this Mushtaq raised lalkara that they be taught a lesson for taking place on adda. At this Tariq made a churri blow which hit at stomach of the complainant's father towards right, Khalid accused gave a churri blow which at the head of his father towards left, Yasir gave a churri blow which hit to his father on his chest towards right, who fell down on the ground. His brother Mudassar proceeded ahead to save his father and to refrain Tariq etc. from further causing injuries to his father and caused injuries to Yasir and Tariq. In the meanwhile, Babar caused injuries to Mudassar on his left armpit. Side by side Zeshan gave churri blow at the forehead of Mudassar and he too fell down. On fallen Mudassar, Luqman gave churri blow which hit to him at his right leg. The accused persons while raising lalkara went to their houses. The motive behind occurrence is that few days ago his father Amanat Ali took place from Azam through Muhammad Arif for placing khokha at Adda. Today they wanted to place Khokha. Accused were terror in the area and were involved in many criminal cases. Accused persons in furtherance of common intention with each other to commit murder of his brother and father, caused injuries to them. Complainant did not proceed ahead due to their fear because accused were armed with churries. Beside him Sajjad Hussain s/o Nawaz, Muhammad Malik s/o of Lal Din and so many other persons witnessed the occurrence.
3. We have heard learned counsel for the appellants and learned Deputy Prosecutor General assisted by the learned counsel for the complainant and have also gone through the record.
4. Prosecution case is rested on the evidence of PW-1 Muhammad Azhar complainant of the case, PW-2 Sajjad Hussain and PW-3 Mudassar Ali s/o Amanat Ali deceased who furnished ocular account of the occurrence. Amongst these, pivotal witness is Mudassar Ali who also sustained injuries in the occurrence which fact was not denied even by the accused side. Though, all the three eye-witnesses are on agreement on material particulars but the evidence adduced by injured Mudassar Ali s/o Amanat Ali deceased is firstly taken up to ascertain whether he deposed bona fidely before the trial Court, as it is not rule of thumb that an injured prosecution witness will in all the circumstances tell truth. PW-3 Mudassar Ali injured PW deposed that on 09.09.2006 at 9.00 a.m. he was present at his juice shop at Adda Choubara alongwith his father Amanat Ali deceased and brother Muhammad Azhar. Tariq, Khalid, Yasir, Babar, Zeshan and Luqman accused all came with churries alongwith Mushtaq Ahmad who was empty handed and raised lalkara that Amanat Ali be taught a lesson for taking site. Tariq accused inflicted a churri blow to his father Amanat Ali which hit him on the abdomen. Yasir also inflicted a churri blow to Amanat Ali which landed on his chest. Churri blow of Khalid accused hit on the head of his father Amanat. To rescue his father, when he forwarded he was assaulted upon by Yasir, Luqman and Babar. Accused Babar gave him churri blow on his chest and churri blow of Luqman hit on his right leg. Zeshan Iqbal accused caused an injury on his forehead. Thereafter, he I took out churri from his juice shop to save his father and gave its blows on Tariq Mehmood and Yasir. His father Amanat Ali succumbed to the injuries on the same day. Injured Mudassar Ali PW-3 deposed that his father Amanat Ali had taken that site from Azam on lease and it was the same place where Abdullah had a Khokha and it was not in his knowledge that said site was got partitioned by Azam and his brother before its lease. It was suggested by defense to PW-3 Mudassar Ali that in fact on 09.09.2006 at 8.30 a.m. Yasir accused was purchasing fruit from the shop of Iftikhar co-accused where Mudassar Ali, Sajjad Hussain, Abbas Hussain, Muhammad Azhar, Israr and Ibrar injured Yasir. Said Mudassar Ali PW-3 admitted that Yasir was taken to Chouwinda Hospital by his father Mushtaq Ahmad.
PW-11 Dr. Maqsood Ahmad Butt, Senior Medical Officer, medically examined Amanat Ali on 09.09.2006 at 10.25 a.m. who was brought in injured condition in the Hospital, his condition was very serious, pulse very weak, blood pressure 65/40 mm HG. Said doctor observed three incised wound on the body of Amanat Ali which are as under:-- (1)An incised wound 2 cm x 1/2 cm x muscle deep on left temporal region.
(2)An .incised wound 6 cm. x .3 cm. x DNP on front to lateral aspect right side of chest, 3 cm. above and lateral from right nipple.
(3)An incised wound 4 cm. x 2 cm. x DNP on right epigastric region 5 cm. from Injury No. 2. Intestine were outside from the wound.
All injuries were caused by sharp edged weapon. Corresponding tears were present on sky blue Qameez and white vest. Probable duration between injuries and examination was fresh.
On the same day and time, Dr. Maqsood Ahmad Butt medically examined Mudassar Ali s/o Amanat Ali who was brought in serious condition and all wounds were bleeding profusely. Pulse very weak and blood pressure 70/50 mm HG. He found three sharp edged wounds on his body which are as under: (1)An incised wound 2 cm x 1/2 cm x muscle deep on left side of forehead.
(2)An incised wound 5(1/2) cm x 2 cm x DNP on front aspect left lower most part of chest.
Omentum and fat is outside from the wound.
(3)An incised wound 1 (3/4) cm x 1/2 cm x muscle deep on medial aspect mid of right lower leg.
PW-11 Dr. Maqsood Ahmad Butt further observed that Mid line incision made, peritorium opened, about 3000 ML blood present in peritoneal cavity, drained. There were two perforations in the stomach 4 cm x 3 cm in size. Both repaired into layers. There was through and through (injury perforation) to the right, lobe of liver, which was repaired, Hemo stasis is recovered. Two lower ribs left near costal curtilages were cut. Muscle repaired, drain left in abdomen closed in layers, ASD done. In the light of above, Injury No. 2 was declared as Jaifa.
PW-10 Dr. Gull Nawaz conducted post-mortem on the dead body of Amanat Ali deceased on 10.09.2006 according to him death was due to hemorrhage and shock due to Injuries No. 2 & 3 sufficient to cause death in ordinary course of nature collectively. Injury No. 3 was fatal individually and said injury was attributed to appellant Tariq Mehmood. Time between injury and death was six to seven hours and between death and examination ten to eleven hours.
PW-13 Dilawar Hussain SI deposed that after receipt of information regarding the occurrence, he proceeded towards place of occurrence and after completing the necessary formalities recorded statements of PWs there. Said PW-13 recorded statement of injured Mudassar Ali on 28.09.2006, after getting permission from the doctor. On 17.10.2006 Mushtaq Ahmad accused moved application for registration of cross version. Tariq Mehmood, Iftikhar and Luqman accused persons were arrested on 22.10.2006 and during the investigation appellants Tariq Mehmood and Luqman led to the recovery of churri weapon of offence. PW-13 Dilawar Hussain SI deposed that on 17.10.2006 he was informed that Tariq Mehmood accused was admitted in hospital since the day of incident. However, he showed his ignorance as to whether Tariq Mehmood was got medically examined by police official or not. PW-13 Dilawar Hussain SI also stated that before his arrival at the place of occurrence, Mushtaq Ahmad had already taken Yasir injured accused to Chuwinda Hospital. According to him, cross version got recorded by Mushtaq Ahmad was correct. Said Investigating Officer did not collect evidence regarding the rented premises in favour of Amanat Ali. Tariq Mehmood appellant when was examined u/S. 342, Cr.P.C., answered Question No. 2 which is as under: "It is incorrect. As a matter of fact accused persons namely Mudassar Ali, Ibrar, Sajjad, Israr and Azhar all armed with churries whereas Abbas armed with iron rod caused injuries to Yasir (my brother) with their respective weapons on 9th of September 2006 at 8.30 a.m. in the area of Adda Choubara when Yasir, my brother, was purchasing fruit from the shop of Iftikhar, Mudassar inflicted a blow on his left buttock, whereas Ibrar caused an injury on the left arm, Sajjad caused an injury on the palm of left of hand, Israr inflicted blow on his right leg with their respective weapons/churries whereas Abbas caused an injury within an iron rod which hit him on his left hand and he was thereafter, shifted to hospital by my father Mushtaq. After hearing incident I was coming to the place of occurrence when I reached in front of the shop of one Hassan the accused persons aforesaid alongwith Amanat Ali (deceased encircled me. The aforesaid co-accused alongwith Amanat Ali, armed with sariya, encircled me and Abbas inflicted a churri blow on the left shoulder of mine. Amanat Ali caused an injury with iron rod on my left hand whereas Azhar inflicted churri blow to me which landed on the left thumb of hand of mine and Mudassar caused an injury with churri on the abdomen of mine. I took out the churri from my abdomen, meanwhile Ibrar assaulted with churri on me, but accidently it hit Amanat Ali. I inflicted injuries to Mudassar and Amanat Ali in exercise of my right of self-defense.
5. This brief recapitulation of the entire episode establishes that occurrence erupted all of a sudden over a dispute of possession of Khokha and thereafter free fight took place between them, as a result of which Amanat Ali lost his life and Mudassar Ali PW-3 was also seriously injured. In the said incident Tariq Mehmood and his brother Yasir also received injuries. Injury caused by Tariq Mehmood appellant on the abdomen of Amanat Ali deceased caused his death. However, facts and circumstances of the case take the case of appellant out of the pail of Section 302(b), PPC and provision of Section 302(c), PPC will apply. It is settled now that exceptions to erstwhile provision of Section 300, PPC come within the ambit of Section 302(c), PPC. As regards the plea of appellant Tariq Mehmood that complainant side was aggressor, it appears getting support from the facts and circumstances of case, as medical evidence shows that Mudassar and his father received injuries on their vital parts of bodies and thereafter, were not in position to cause injury to appellants and their co-accused. However, number of injuries on the vital parts of body of deceased and injured Mudassar Ali indicate that appellant Tariq Mehmood and Luqman had exceeded their right of self-defence.
6. In view of the facts and circumstances of the case, Criminal Appeals No. 297 of 2009 and 360 of 2009 filed by appellants Tariq Mehmood and Luqman Tariq respectively are dismissed with the modification that conviction and sentence of appellant Tariq Mehmood u/S. 302(b), PPC is converted into 302(c), PPC and accordingly, Tariq Mehmood appellant is sentenced to undergo rigorous imprisonment for ten years which will meet the ends of justice. After perusal of entire prosecution evidence, we are not persuaded to take different view from that of trial Court. Trial Court had rightly held that this was a case of free fight between both the parties in which both sides sustained injuries. Earlier enmity did not exist between the parties and incident erupted all of a sudden that shows that there was no pre-planning or pre-meditation behind the scene. We have also observed that none from the either side is habitual or hardened criminal. In view of the peculiar facts and circumstances of case, we are maintaining the convictions of the appellant Luqman Tariq but sentence imprisonment awarded to the appellant is not found justified which is set aside accordingly. However, other sentences of Daman and Arsh as were awarded by the trial Court shall remain intact. Criminal Appeal filed by the appellant Luqman dismissed with the above modification. Appellant Tariq Mahmood is on bail, he be taken into custody and send him to jail to serve out his remaining sentence. Benefit of Section 382(b), Cr.P.C. is granted to him.