Mohammad Yousaf, Mohammad Boota, Abdul Rehman, Rafiq, Zaman, Abdul Karim alias Keema, Mohammad Sharif and Chanan were tried by an Additional Sessions Judge of Sargodha under section 302/307/452/148/149, P. P. C. For the murder of Khuda Bux deceased, attempt on the lives of Sultan, Mst. Sahib Khatoon and Mst. Hotni P. Ws. Trespass into the house of Sultan P. W. With the intention of assault--ing its inmates and for rioting. The learned trial Judge, by his judgment dated 19th February, 1980, convicted Mohammad Yousaf, Mohammad Boota, Abdul Rehman and Rafiq, accused, under sections 302/34, 307/34 452/34, P. P. C. And sentenced them to life imprisonment under section 302/ 34, P. P. C. Each with a fine of Rupees one thousand (Rs. 1,000) each or in default to further undergo rigorous imprisonment for one year, under section 307/34, P. P. C. To four years' rigorous imprisonment each with a fine of Rupees two hundred (Rs. 200) each or in default to undergo further rigorous imprisonment for six months each and under section 452/34, P. P. C. To one year's rigorous imprisonment each with a fine of Rupees one hundred (Rs. 1.00) each or in default thereof to further undergo rigorous imprisonment for three months each. The tine awarded under section 302/34, P. P. C. If realized, was ordered to be paid to the heirs of Khuda Bux, deceased, and the fine awarded under section 307/34, P. P. C. If realized, was ordered to be paid to the injured witnesses in equal shares. All these sentences were ordered to run concurrently. Zaman, Abdul Karim alias Keema, Mohammad Sharif and Chanan, accused, were, however, given the benefit of doubt and acquitted from all the charges. The joint appeal (Criminal Appeal 505 of 1980) preferred by the four convicts against their conviction and sentences and the private revision (Criminal Revision 1024 of 1980) filed by Sultan, complainant, against the acquittal of the four acquitted accused and for enhancement of the sentences of the four convicts, are both now before me for considera--tion and will be disposed of by this judgment.
2. The brief facts of the case, as they emerge from the statement of Sultan P. W. 9 complainant at the trial, are that Khuda Bux, deceased, was his son and Abdur Rehman, father of Zaman, accused, wanted to give the hand of his daughter Mst. Aslan to his son Khuda Bakhsh and instead wanted the hand of his daughter Mst. Fateh Bibi for 2aman, accused. He agreed to this proposal, but it was not liked by his son Khuda Bux, deceased. A year before the present occurrence, he married his son Khuda Bux, deceased, to a daughter of his maternal-uncle and after this marriage his son shifted to Khushab and joined the service of Ghulam Haider P. W. As driver. He deposed that a year and two months ago on the day of occurrence at about degarwela time he was present in his house alongwith Khuda Bux deceased, his wife Mst. Sahib Khatoon P. W. 11, sister Mst. Hotni P. W. 10 and another son Nawab when all of a sudden all the eight accused, namely, Zaman, Yousaf, Boota, Abdur Rehman, Abdul Karim alias Keema, Muhammad Sharif, Chanan and Rafiq came there.
Yousaf, Zaman, Sharif, and Rafiq, armed with hatchets, and Chanan, Boota, Abdur Rehman and Abdul Karim alias Keema armed with dangs, committed trespass, came into his courtyard and challenged Khuda Bux, deceased, that they would not spare him as he had not married Msr. Aslan the sister of Zaman, deceased. Khuda Bux, deceased, got up at the challenge, but in the meanwhile Yousaf, accused, gave him a hatchet blow on his head. Zaman, accused, also dealt a blow which also hit his head Sahib Khatoon P. W. 11, the mother of the deceased, fell over his son Khuda Bux, deceased, when Sharif, accused, dealt her a hatchet blow on her arm. Mst. Hotni P. W. 10 fell over Khuda Bux, deceased, when Rafiq, accused, gave her a hatchet blow on her left arm. He then stepped forward to intervene, but Chanan, Boota, Abdur Rehman and Abdul Karim, accused, gave him dang blows. His son Nawab also intervened, but Chanan, accused, gave him a dang blow on his head. The noise raised by the injured attracted Abdur Rehman, Sawaya and Ramzacz P. Ws. At the spot. He further deposed that he himself and his sock Nawab also picked up dangs for their safety and in self-defence they gave injuries to Yousaf, Boota, Abdur Rehman and Rafiq, accused, Leaving all the injured in his house, he proceeded to the Police Station Khusbab. Where he lodged F.
1. R. Exh. P. X. At 6.30 p. m., which was recorded b~ Mohammad Akbar A. S. 1. P, W. 12.
3. The investigating officer, after recording the F. I. R. Exh. P: X and the injury statement, sent Sultan P.
W. 9 for medical examination He then proceeded to the spot where, after preparing the necessary papers he sent Khuda Bux injured, Mst. Hotni P, W. 10 and Mst. Sahib Khatoon P. W. 11 to the District Headquarters Hospital, Sargodha, for medical examination. He collected blood-stained earth from the spot vide memo. P. M.
4. The same day i.e. 13th November, 1978 at 8.00 p. m. Dr. Azim Majoka P. W. 5 medically examined Khuda Bux injured and found an incised wound 42" x 1" on the right side of his head with the brain coming out and a contused wound 1 --" x 1/3" x 1/4" on the left side of his bead. The injured was totally unconscious. The incised wound was declared grievous and dangerous and the contused wound a simple; both the injuries being caused within four hours of the medical examination. The same doctor examined Sultan P. W. 9 and found three contused wounds on the left side of his head, two lacerated wounds on the palmer aspect and back of his right little finger, a contused mark on the back of his left forearm, a contusion on the front of his left chest and an abrasion on the front of his right leg. All injuries were simple and caused by blunt weapon within four hours. The same doctor also examined Mst. Hotni P. W. 10 and found an incised wound 2" x J" x 3/4" on the back of her left forearm, which sharp-edged simple injury was declared to have been caused within four hours. The same Doctor also examined Mst. Sahib Khatoon P. W. 11 and found an incised wound 2" x 1/8" x 1/10" on the back of her right forearm, which sharp-edged simple injury was declared to have been caused within four hours.
5. On 14th November, 1978 all the eight accused were arrested by Mohammad Akbar A. S. I. P. W. 12.
As Mohammad Yousaf, Mohammad Boota, Abdul Rahman and Rafiq, accused, bore injuries on their persons, they were sent for medical examination to the -District Headquarters Hospital, Sargodha. Dr. S. M. Rafiullah P. W. 1 examined Mohammad Yousaf, accused, and found a lacerated wound 31" cm x 1 cm. Scalp deep on his left parietal eminance, a bruise mark 12 cm. x 1 -- cm. On the back of his right shoulder, two abrasions 2 cm. x -- cm. Each on the front of his left leg and an area of pain declared by the injured to be on his right knee. All the blunt weapon injuries were found to be simple and caused within twelve hours of the examination. The same doctor also examined Mohammad Rafiq, accused, and found a lacerated wound 2 -- cm. x -- cm. x -- cm. On the left side of his head and a swelling 11 cm. x 11 cm. On the outer side of his right thigh. Both the blunt weapon injuries were found to be simple and caused within 24 hours. The same doctor also examined Abdul Rehman, accused, and found a contusion mark with abrasion 3 cm. x 1 cm. On the centre of the left side on his head, a lacerated wound 11 cm. x 3/4 cm x skin deep on the inner aspect of his right thigh, an abrasion 2 cm. x 3/4 cm. On the back of his left shoulder and an area of pain on the outer side of his left thigh. All the blunt weapon injuries were found to be simple and caused within twenty-four hours of examination. The same doctor also examined Mohammad Boota, accused, and found three lacerated wound on the right, left and back sides of his head, a contusion mark.10 cm. x 2 cm. On the back of his right shoulder, three bruises 10 cm. x 2 cm. Each on the back of his left shoulder and an abrasion 1 -- cm: x 1 cm. And a contusion 3 -- cm. x 1 cm. On his left forearm. All the blunt weapons injuries were simple and were caused within twenty-four hours of the examination.
6. On 19th November, 1978 at 7.00 a. m. Khuda Bux, deceased breathed his last in the hospital. The same day at 1 p. m. Dr. Azim Majoka P. W. 5 conducted the post-mortem examination on the dead body of the deceased and found the same injuries on it which he had earlier discovered at the time of his medical examination. Death was due to haemorrhage and shock, resulting from both the injuries, which were declared grievous and dangerous and each one did sufficient to cause death in the ordinary course of nature. Probable time between injuries arid death was declared to be six days and that between death and post-mortem examination about six hours.
7. On 20th November, 1978, Chanan, Zaman, Muhammad Yousaf. Rafiq, Muhammad Sharif, Abdul Rahman, Muammad Boota and Abdul Karim alias Keema accused led to the recoveries of soti P. I, blood-stained kulhari P. 2, blood-stained kulhari P. 3, kulhari P. 4, Kulhari P. 5, soti P. 6, soti P. 7 and soti P. 8 respectively from their respective kothas in village Manghor, which were taken into possession vide memos. P. N., P. O., P. Q., P. R., P. S., P. T., P. U. And P. V. Respectively in the presence of Mumtaz P. W. 8., Muhammad Akbar A. S. 1. P. W. 12 and Muhammad Arif (given up P. W.)
8. After completing the necessary investigation, the challan against the accused was sent up.
9. At the trial, the prosecution produced Sultan P. W. 9 to prove the motive, the said witness and Mst.
Hotni P. W. 10 and Mst Sahib Khatoon P. W. I1 in support of the ocular account, Mumtaz P. W. 8 and Muhammad Akbar A. S. I. P. W. 12 in proof of the recoveries and Dr. S. M. Rafiullah P. W. I and Dr. M.
Azim Majoka P. W. 5 to corroborate the medical testimony.
10. Zaman, Abdul Karim, Muhammad Sharif and Chanan. Accused, when examined at the trial admitted their relationship with their co accused but denied all the accusations levelled against them, including the recoveries alleged to have been effected at their instance. They imputed their false involvement to enmity. Muhammad Yousaf, Muhammad Boota, Abdul Rehman and Rafiq, accused, however, admitted their relationship with the other co-accused, denied the motive and their participation in the occurrence in the manner as alleged by the prosecution witnesses, but admitted the injuries on their persons at the hands of the complainant party in circumstances totally different from the prosecution case. They denied the recoveries alleged to have been effected at their instance. The explanation of the injuries on their person, which explanation is common to all the four accused, can be reproduced from the statement of Yousaf, accused.
According to him, Muhammad Khan, a son of a brother of Sultan P. W. Was married to Mst. Bivi, paternal aunt of Zaman, accused. Her husband turned her out of his house and she was living with her brother Abdur Rehman, father of Zaman, accused. A few days before the occurrence, she gave birth to a daughter and was seriously ill. At the time of occurrence, her brother Abdui Rahman sent his father Boota to the house of Sultan P. W. To request him to use his influence to tell Muhammad Khan to take his wife Mst. Bi4; to the Hospital, as she was dying. But when his father made the request to Sultan, the latter abused Mst. Bivi and told Boota to let her die. His father repeated the request, whereupon Sultan P. W. Started assaulting him. In the meantime, serveral partisans of Sultan also arrived there. Khuda Bux, deceased, was already present with Sultan and he also caused injuries to his father Boota alongwith their partisans. On the alarm of his father, he Rafiq and Abdur Rahman, accused, rushed to the spot to save his father, but they were also injured by the deceased, Sultan P. W. And others. In the meantime, some of their partisans also reached there and they caused injuries to the deceased and Sultan P. W. In their self-defence. He and his companions Rafiq and Abdur Rehman also used danda in self-defence. His other co-accused, Zaman, Sharif, Chanan and Abdul Karim, never came to the spot. They had been falsely implicated by the complainant party in collusion with the Police.
11. The learned trial Judge, disbelieving the motive and the recoveries effected at the instance of Chanan, Zaman, Rafiq, Muhammad Sharif, Abdur Rehman, Muhammad Boota and Abdul Karim, accused, but relying upon the ocular account, the injuries found on the person of the four accused, the recovery effected at the instance of Muhammad Yousaf, accused the medical evidence, convicted and sentenced Muhammad Yousaf, Muhammad Boota, Abdul Rehman and Ratiq, accused as stated in para. 1 above and acquitted the rest.
12. I have heard the arguments of the learned counsel for the appellants, the complainant and the State and have also perused the record. Before dealing with the arguments addressed by the learned counsel for the appellants, it would be pertinent to mention that the appellants/acquitted accused are related inter se and so are the prosecu--tion witnesses and both the groups are also related to each other. Abdul Karim alias Keema, acquitted accused, is a real brother of Abdul Rahman, appellant. Rafique appellant and Sharif, acquitted accused, are brothers inter se. Mother of Rafique, appellant, is real sister of Abdul Karim, acquitted accused, and Abdul Rahman, appellant. Yousaf, appellant is son of Muhammad Boota, appellant. Chanan, acquitted accused, and Muhammad Boota, appellant are cousins in the second degree. Chanan, acquitted accused, is also a khalazad of the mother of Zaman, acquitted accused. Both the parties are from the same caste, being Muslim Sheikhs. Even beyond that Zaman, acquitted accused, is the sister's son of Sultan P. W. Muhammad Boota, appellant, is the son of father's sister of Sultan P. W., while Chanan, acquitted accused, is the mother's sister's son of Sultan P. W. Father of Sharif, acquitted accused, and Rafique, appellant, are also related to Sultan P. W. In the second degree and Abdul Rahman, appellant, and Abdul Karim, acquitted accused, are also related to Sultan P. W. Through his mother.
Mother of Muhammad Yousaf, appellant, is khalazad of Sultan P. W.
13. The motive in this case bas been rightly disbelieved by the learned trial Judge, for reasons given in paras. 33 and 34 of the judgment, which reasons have not been challenged by any of the counsel appearing in this case. The reasons given by the learned trial Judge for rejecting the evidence are cogent and convincing and I approve of the findings given in this respect.
14. The ocular account in this case is furnished by Sultan P. W. 9, Mst. Hotni P. W. 10 and Mst. Sahib Khatoon P. W. 11, who are the father, paternal-aunt and mother of Khuda Bakhsh, deceased, respectively. The incident occurred in the open courtyard just outside the house of Sultan P. W.
9. A11 the three witnesses are residents of the same house and they were injured during the occurrence.
They are, therefore, natural witnesses. The motive being disbelieved, there is also nothing on the record to show that any of the witnesses had any ill-will against any of the appellants or the acquitted accused. However, in view of the suppression of injuries by Sultan P. W. 9 in the F. I. R. Exh.
P. X, the contradiction between the statements of these witnesses made to the police and their evidence at the trial as regards whether Khuda Bakhsh, deceased, and Sultan P. W. 9 or Nawab (not cited in the challan) were the persons who injured the appellants and contradiction in the medical testimony and the evidence as regards the type of weapons used by Abdur Rehman, appellant, in causing the contused wound on the deceased. The learned trial Judge did not deem it proper to accept the evidence without proper corroboration. In dealing with the question as to what actually prompted the appellants and the acquitted accused to commit the offence in question, in the background of the motive being disbelieved, the learned trial Judge, after carefully discussing that evidence on record, held in para. 41 of his judgment that Muhammad Boota, appellant, had gone to the house of Sultan P. W. 9 as claimed by the appellants to seek his inter--vention for asking Muhammad Khan to take his wife to hospital for medical aid, that something took place there which resulted in exchange of abuses between Sultan P. W. 9 and Khuda Bakhsh, deceased, on one side, and Muhammad Boota, appellant, on the other, and that Sultan P. W. 9 and Khuda Bakhsh, deceased, inflicted injuries to Muhammad Boota, appellant, and that the other appellants came to Muhammad Boota's aid. The reasons given by the learned trial Judge in arriving at this finding, as given in para. 41 of his judgment, are cogent and correct. However, towards the latter part of the same paragraph, the learned trial Judge has held that Muhammad Yousaf, Abdul Rehman and Rafique, appellants, had no right to trespass into the house of Sultan P. W.
9. Which was bounded by walls, for rescuing Muhammad Boota, appellant, that the said three appellants could have had recourse to law and that, therefore, they could not be said to have gone on a peaceful mission.
From this juncture, according to the learned trial Judge, the peaceful purpose of the accused side changed into crime. The learned counsel for the appellants had chal--lenged the latter finding, whereas the learned counsel for the complainant has supported the same. It cannot- be denied that the occurrence, as found by the learned trial Judge, was sudden and erupted out of the peaceful mission undertaken by Muhammad Boota, appellant, to secure assistance for Mst. Bivi, his daughter, from Muhammad Khan as his daughter required medical aid. The three eye-witnesses, whilst explaining the injuries on the appellants in their police statements, definitely alleged that Khuda Bakhsh, deceased, and Sultan P. W. 9 had given those injuries. This is a strong circumstance to show that Khuda Bakhsh, deceased, used his weapon before actually receiving the first injury which was fatal and on his head, if he had received this injury first from Muhammad Yousaf, appellant, as alleged, he would not have been able to retaliate. That being so, it appears that 'on the sudden quarrel, the complainant party were first to open attack. However, due to the fact that Muhammad Yousaf, Abdul Rehman and Rafique. Appellants, were all residing near the place of occurrence, they also reached the spot duiy armed, very likely on the alarm raised by Muhammad Boota; appellant, to defend him. The site plan Exh. P. F. Shows that the occurrence took place at point No. 1. This point appears in the open space outside the house of Sultan P. W.
9. In fact the open space outside the -houses of Sultan P. W. 9, Abdul Rehman and Ghulam Nabi appears to be inter- linked and common. It cannot, therefore, be said as suggested by the learned trial Judge, that Muhammad Yousaf, Abdul Rehman and Rafique appellants, trespassed into the house of Sultan p.
W. 9 which was bounded by the wall, for rescuing Muhammad Boota, appellant. Basically the case is one of a sudden fight. Not only Mst. Hotni P. W. 10 and Mst. Sahib Khatoon P. W. 11 rushed towards, the place of occurrence, but also the other three appellants, who were living close by, Muhammad Boota, appellant, very likely was not armed, as he had gone on a peaceful mission. This accounts for the fact why he received the largest number of injuries on his person. Muhammad Yousaf. Abdul Rehman and Rafique, appellants, obviously ran to his aid, picking up whatever weapons they could lay their hands on, with which they inflicted injuries on Khuda Bakhsh, deceased, and the three witnesses. These three appellants have lesser number of injuries on their persons. In these circumstances, basically the case is one of a sudden fight and it cannot, therefore, be said that any of the appellants had acted in any unusual manner or that their mission was deliberate murder of the deceased. In these circumstances, the appellants appear to have been wrongly convicted under sections 302/34, 307/34 and 452/34 P. P. C. There is no criminal trespass in this case as the occurrence took place in the open courtyard outside the house of Sultan P. W. 9, which appears to be a common courtyard of two other neighbouring houses also. Their conviction and sentences under section 302/307/452/34, P. P. C. Is set aside. The appellants are liable for their individual acts and should be convicted accordingly.
15. In view of the above finding, the only question that remains is the offences committed by each of the appellants. Muhammad Yousaf, appellant, is attributed to have inflicted the first injury on the head of Khuda Bakhsh, deceased, with his hatchet, which proved fatal. He is therefore, liable under section 304-1, P. P. C, and is sentenced to ten years' rigorous imprisonment with a fine of Rupees two thousand (Rs. 2,000) or in default thereof to undergo further rigorous imprisonment for one year. Muhammad Yousaf, appellant, shall also pay Rupees five thousand (Rs. 5,000) as compensation to the heirs of the deceased or in default to undergo further rigorous imprisonment for one year. Abdul Rehman and Muhammad Boota, appellants, are attributed to have inflicted dang injuries to, Sultan P. W.
9. All the three eye-witnesses are consistent in this respect. However, Mst. Hotni P. W. 10, and Mst. Sahib Khatoon P, W. It, also alleged that these two appellants inflicted dang injuries to Nawab P. W. (not cited in the challan), who was also injured, but this part of their statement has not been believed by the trial Judge and rightly so. In these circumstances, Abdul Rahman and Muhammad Boota, appellants, are convicted under section 323, P. P. C. For the injuries inflicted to Sultan P. W. 9 alone and sentenced to one year's rigorous imprisonment each ---with fine of Rupees one thousand (Rs. 1,000) each or in default thereof to undergo further rigorous imprisonment for three months each. Both the appellants shall also pay Rupees one thousand (Rs.
1,000) each as compensation to Sultan P. W. 9 or in default thereof to undergo further rigorous imprisonment for three months' each. Muhammad Rafiq, appellant, is attributed to have inflicted a hatchet blow on the left arm of Mst. HOW P. W,
10. The evidence is consistent in this respect. Rafiqe, appellant is, therefore, convicted under section 324, P. P. C. And sentenced to two years' rigorous imprisonment with fine of Rupees one thousand (Rs 1,000) or in default thereof to undergo further rigorous imprisonment for three months. Rafique, appellant, shall also pay Rupees one thousand (Rs. 1,000) as compensation to Mst. Hotni P.W. 10 or in default thereof to undergo further rigorous imprisonment for three months. In view of the provision of section 382-B, Cr. P. C., the period of detention undergone by the appellants as under-trial prisoners shall be treated as that undergone by them as convicts. This appeal, therefore, stands partly accepted in terms of alteration of conviction and reduction in sentences, as stated above.
There being no merit in the private revision petition (Cr. R. 1024 of 1982) filed by Sultan, complainant, the same is dismissed in limine.