Muhammad Inayat (30), his brother Iftikhar (25), their brothers-in-law Ata Muhammad (55) and Ghulam Rasool (50), their sister's son Khyzar Hayat son of Ata Muhammad (25), Khushi Muhammad (80), father of Ghulam Rasool accused, Abdul Aziz (30), Muhammad Khan (80), Muhammad Ashraf (15) and Suba Khan (75), (these last mentioned four accused are also related to the other six accused), were tried for the murder of Ghulam son of Ali Muhammad and for having murderously assaulted the prosecution witnesses. On 10-7-1980 Khyzar Hayat, Iftikhar Ahmad, Muhammad Inayat, Ghulam Rasul and Atta Muhammad were convicted under section 302/148 and 307/149, P. P. C. On the first count they were sentenced to life imprison--ment and a fine of Rs. 10,000. Each in default to suffer three years' R. I. Further. Each was ordered to pay Rs.
10,000 as compensation under section 544-A, Cr. P. C. To the heirs of the deceased. On the second count they were sentenced to three years' R. I. And a fine of Rs. 5,000 each, in default to suffer six months' R. I. Further each. They were also ordered to pay Rs.5,000 each as compensation to the injured witnesses under section 544-A, Cr. P. C. They were also sentenced under section 148, P. P. C.
To three years' R. 1, each. The remaining five accused were acquitted of the charge. The appeal of the convicts and the revisions against acquittal and for enhancement of sentence filed by Ghulam Nabi (informant) are before me.
2. Muhammad Ashraf, real brother of Inayat and Iftikhar accused, was married to Mst: Safia, grand- daughter of Ghulam deceased. One and a half months before the occurrence in this case, Mst.
Safia filed a suit for dissolution of her marriage, for which reason the accused bore a grudge against Ghulam deceased. The second motive according to the prosecution, was an incident which took place soon after the sunrise, on 30-10-1978, an hour or so before the main occurrence in this case i.e. Khyzar Hayat, Iftikhar Ahmad and Ghulam Rasool accused were going towards their dera, when they reached near the village pond, Khyzar Hayat son of Mutalli protested to them as to why they had abused his brother-in-law Jahana son of Rehma. Upon this they started abusing each other. P. W. Ghulam Rasool son of Ranjah and Ashraf (a given up witness) intervened and did not let the matter aggravate further. Thereafter both the parties went towards their deras. On the same day at about Chahwela, when Ghulam deceased was going from his Dera to the village on the way Inayat and Khyzar Hayat son of Ata Muhammad, armed with balams, Iftikhar armed with a pistol, came out of their house. Ata Muhammad, Ghulam Rasool son of Khushi armed with balams.
Muhammad Khan, Aziz, Ashraf armed with sticks, Khushi armed with a hatchet and Suba empty- handed also emerged from their Baithak and attacked Ghulam. Iftikhar fired the pistol shot upon which Ghulam ran towards his Baitakh. Ata Muhammad gave a spear blow to him in the right flank.
Khyzar Hayat inflicted a spear blow in his chest-on the left side. Ghulam Rasool inflicted a spear blow in his left flank. Ghulam fell down. Thereafter Inayat inflicted a spear blow on the left side of his neck. P. Ws. Ghulam Nabi, Muhammad Hayat, Ghulam Rasool son of Mutalli, Lal Khan, Salehon, Haidar and Nazar, their co-villagers, witnessed the occurrence and tried to rescue Ghulam who was being beaten by the accused. P. W. Ghulam Rasool, had a stick with him, He inflicted a blow with it on the right hand of Iftikhar accused and his pistol dropped. Muhammad Hayat was hit by Khizar Hayat accused, Lal was hit by Ashraf accused. Ghulam Rasool who knocked down Iftikhar was hit by Khushi and Aziz. Salehon was hit by Inayat accused. Thereafter the accused went towards their dera. From there Ghulam reached his Baitakh, but soon thereafter he died. P. W. 8 Ghulam Nabi went to Police Station Kuthala Sheikhan and made F. I. R. Exh. P. A. To P. W. 14 Muhammad Zar, S. H. O., at 10 a.m. The same day, at a distance of five miles from the place of occurrence. After registration of the case, the S. I. Went to the place of occurrence. He prepared the necessary documents and sent the dead body for its post-mortem examination.
3-4. [Medical Evidence].
5. All accused were arrested on 30-10-1978 except Ashraf and Ata Muhammad accused who were arrested on 2-11-1978. On the same day each accused got recovered his respective weapon. These weapons were not stained with human blood. It may be mentioned here that this was one of the reasons that the recovery of the weapons was not considered by the trial Court as a corroborative piece of evidence against the accused.
After completing the investigation, the accused were prosecuted in due course.
6. At the trial all accused denied guilt. Explaining his injuries, and the case against him, Inayat accused made the following statement :- "Salehon P. W. Suspected illicit relations of his wife with me and to take the revenue of the same he along with Ghulam Rasul, Muhammad Hayat, Sikandar, Muharnmad Ashraf. Khizar son of Mutalli and Mukhtar Ahmad had attacked us. Khushi and Ghulam also reached there. They snatched some weapons from the P. Ws. And gave injuries to them and rescued us. We also threw brickbats to Eave ourselves. Ghulam was also injured while separating us by the P. Ws. To save themselves the complainant party had manoeuvred to get us involved falsely although the complainant party had attacked upon us."
All the other accused supported his statement. No accused led evidence in defence.
7. Relying on the evidence of the eye-witnesses coupled with the fact that Khizar Hayat, Iftikhar, Muhammad Inayat, Ghulam Rasool and Ata Muhammad accused had come jointly to the place of occurrence, armed with deadly weapons, the trial Court considered them to be vicariously liable.
Insofar as the remaining accused were concerned, though they also came jointly from different directions, but not alongwith the aforesaid five accused, therefore they were given the benefit of doubt and acquitted. It was further observed that there was no background of enmity between the parties and the occurrence was the result of the earlier incident which took, place that very day arid was not of a serious nature. Therefore the convicted accused were awarded the lesser punishment.
8. Criticising the finding of the trial Court, learned counsel for the appellants contended that the trial Court while rejecting the plea of self-- defence has not given cogent reasons. It was argued that the accused persons suffered no less than 13 injuries and that though the injuries caused to them were of blunt weapon but some of the accused also bore injuries on their head, therefore, according to the learned counsel, they had the right of self-defence. I have considered this aspect of the case. It may be mentioned straightaway that the sole ground on which the right of self-- defence was asserted by the accused, was that since Inayat accused was suspected, of having an illicit connection with the wife of P. W. Salehon, therefore, the complainant party had the motive to attack. It is noteworthy that, under cross-examination, Salehon was not suggested this defence, nor was it put to any other prosecution witness. On the other hand, a simple suggestion that the accused party had acted in self-defence was put to the witnesses without the alleged background.
It. Appears that since the story of Inayat accused's carrying on with the wife of Salehon was an afterthought, therefore, it was put up at a belated stage. Except this belated defence, there was no other reason put forward so as to show that the right of self-defence bad accrued to the accused persons. I, therefore, rule out the version of the right of self-defence. There was nothing in the evidence of the case to support this plea.
9. Learned counsel for the appellants next contended that the occurrence in this case occurred due to the alleged earlier incident which was said to have take in place soon after the sunrise between Ghulam Rasool, Khyzar Hayat and Iftikhar accused, on the one side, and Khizar, son of Mutalli, on the other, was, in fact, one and the same occurrence, and a gap of about an hour or so has been introduced by the prosecution in order to show premeditation on the part of the accused.
In fact it was a case of a sudden fight in which both sides attacked each other. I have taken into consideration this aspect of the case as well in my view, there is no force in this submission either because had the earlier incident and the one which took place thereafter been one and the same ; then P. W. 6 Ghulam Rasool and P. W. Ashraf (a given up witness) would have also been injured and been the eye-witnesses in this case. But I . . . . . Which they started abusing each other and P. W. 6 Ghulam Rasool son of Ranjah and Ashraf (given up p, W,) had separated them. However, the fact that the prosecution ha not disclosed the immediate cause of the attack in this case, would not ten support to the defence version that Inayat was carrying on with the wife of Salehon because the defence was also not suggested to the witnesses. The fact remains that there was an earlier incident between the parties and after a short while both sides got prepared to fight with each other. Consequent it was a free fight. Under these circumstances, the case of each accused will have to be considered separately in the light of evidence of this case.
10. Iftikhar accused was said to be armed with a pistol which he allegedly fired at Ghulam deceased but there is no fire-arm injury to any one. According to the prosecution, P. W. 9 Ghulam Rasool gave a stick blow on the hand of Iftikhar which fell on his pistol. It is not the prosecution case that while running away Iftikhar picked up his pistol nor was any pistol recovered from the spot. On the other hand, the prosecution relied on the recovery of a pistol from Iftikhar. Its recovery alone did not prove that it was used at the time of the occurrence. On the contrary it belied the prosecution evidence that it was dropped and left behind by the accused. Although Iftikhar suffered six injuries, out of which one was grievous and four were on the head, but the prosecution attributed these injuries to Aziz and Khushi the acquitted accused. The probability that Iftikhar was not armed with any weapon therefore he suffered three injuries from the hand of the complainant party cannot be excluded. He was a resident of the same village and the mere fact that he suffered injuries was not enough to indicate that he actively participated in this occurrence. I therefore give hi the benefit of doubt and acquit him of the charge.
11. Insofar as Ata Muhammad accused was concerned, he was 55 years of age. His son Khyzar had actively participated in this occurrence. He is attributed a spear blow to Ghulam deceased. He has not suffered any injury on him. The weapon recovered from him is also not connected with the crime. I, therefore, give him the benefit of doubt and acquit him.
12. Insofar as Inayat, Khyzar Hayat and Ghulam Rasool appellants are concerned they have suffered injuries and are attributed the three fatal spear blows to the deceased about which all the witnesses are unanimous and the fourth fatal spear injury could have also been inflicted by any of these three appellants. Iii a free fight the injured witnesses do minimize the part played by them and exaggerate the role of the opposite party, but in E respect of these three accused the injuries caused to the deceased by them have been fully supported by other circumstances of this case. I am, therefore, of the view that each one of them would be liable under section 302, P. P. C. Their - conviction and sentences of imprisonment fort life are maintained. The sentence of fine is, however, modified to the extent that each of them shall, pay a fine of Rs. 10,000 only, in default each shall suffer three years' R. I. Further. The total fine, if realized, shall be paid as compensation f to the heirs of the deceased. Insofar as their sentences under section 307, P. P. C. Are concerned, since there is the role of a general beating to the accordingly.