The appellants Shaukat Riaz (25), Habibur Rehm an (30), Sarfaraz Ahmad (28) real brothers and Muhammad Iqbal alias Bala (18), their servant, were convicted by Malik Muhammad Ramzan, Additional Sessions Judge, Faisalabad vide orders dated the 5th April, 1980 and sentenced as under :- Shaukat Riaz appellant.-To suffer imprisonment for life under section 302, P. P. C., and to pay a fine of Rs. 10,000 or in default thereof to under--go 3 years' R. I. For causing death of the deceased.
Habibur Rehman appellant.-To -suffer one year's R. I. Each on two counts under section 324, P. P. C.
For causing simple injuries to the deceased and Javed P. W.
Sarfaraz Ahmad appellant.-To suffer 6 months' R. I., each on three counts under section 324, P. P. C.
For causing simple injuries to Riasat Ali, Nazir Ahmad and Ghulam Mustafa P. Ws.
Muhammad 1qbal appellant.-To suffer one years' R. I. Each on two counts under section 323, P. P. C.
For causing simple injuries on the person of Riasat Ali and Javed P. Ws.
The sentences awarded to Habibur Rehman, Iqbal and Sarfaraz Ahmad appellants have been ordered to run concurrently. Half of the fine, if realised, has been ordered to be paid to the legal heirs of Muhammad Salam deceased.
2. The occurrence in this case took place on the 8th October, 1977 at 2-30 p. m. In street No. 9, Mohallah Nazimabad, Faisalabad City. The F. I. R. Exh. P. L. Was lodged by Riasat Ali P. W. 8, a real brother of Muhammad Salam deceased on the same day at 5 p.m. At Police Station, Factory Area, Faisalabad, which was recorded by Muhammad Shah, S.-I. P. W.
14. The distance between the place of occurrence and the Police station was stated to be one mile.
3. According to the facts given in the First Information Report, Muhammad Azam P. W., a first cousin of the complainant and the deceased went to the house of Ghulam Mustafa P. W. Shaukat Riaz appellant objected to his visit in that street and slapped him at .10-00 a.m. He returned weeping.
When at about 2-00 p.m. The complainant and his deceased brother Muhammad Salam returned from their factory, Azam narrated the incident. Muhammad Salam deceased went to the house of Shaukat Riaz appellant to complain about this incident where in the presence of Ghulam Mustafa and Javed P. Ws. After exchanging hot words they started quarrelling and threw brickbats on each other. Hearing the noise the complainant and Nazir Ahmad P. W. Ran to the spot found that the deceased, Ghulam Mustafa and Javed P. Ws. On the one side and the appellants on the other side were exchanging brick-bats. The complainant and Nazir Ahrnad P. W. Got them separated.
According to the F. I. R. The complainant and his associates were still standing there when the appellants who had gone to their house returned back. Shaukat Riaz appellant who was armed with a chhuri, raised a lalkara that Muhammad Salam deceased shall not be allowed to go alive, and gave 3 chhuri blows to the deceased which hit him on the stomach, chest and arm.
Muhammad Salam fell down. Habibur Rehman appellant who was armed with a khanjar gave him 2 blows with his khanjar on the right arm and left buttock. When Javed P. W. And Ghulam Mustafa P.
W. Went forward to rescue him, Habibur Rehman appellant gave a khanjar blow, on the chest of Javed P. W. Muhammad Iqbal appellant who was armed with a khanjar, gave one injury to Javed P.
W. On his right thigh. Sarfaraz appellant gave 2 sota blows to Ghulam Mustafa P. W. On his head and right shoulder. When the complainant and Nazir Ahmad P. W. Intervened, Sarfaraz appellant gave a sota blow on the forehead of Nazir Ahmad P. W. And one sota blow on the forehead of the complainant. Iqbal appellant also gave a khanjar blow on the right side of the stomach of the complainant. The occurrence was also seen by Muhammad Ishfaq and Gulbaz P. Ws. And they saved the injured P. Ws. From the appellants. Muhammad Salam whose condition was serious and had become unconscious was immediately removed to Civil Hospital. The injured P. Ws. Also accompanied him. Muhammad Salam, shortly after the medico-legal examination, died in the hospital. Riasat Ali complainant went to the Police Station and lodged the First Informa--tion Report (Exh. P. L.)
4. The motive for the occurrence has been stated to be suspicion of Shaukat Riaz appellant, etc. Against Muhammad Salam deceased for having illicit intimacy with Mst. Yasmin, a daughter of their paternal aunt.
5. Muhammad Shah, S.-I. P. W. 14 after recording the First Informa--tion Report, proceeded to the D.
H. Q. Hospital, Faisalabad. After perparing the inquest report Exh. P. T. On the dead body of Muhammad Salam deceased, he despatched the same for post-mortem examination, whereafter, after inspecting the spot he took into possession blood-stained earth vide memo. Exh. P. M., 8 pieces of bricks Exh. P. 4/1-8 and 23 pieces of broken bottles Exh. P. 5/1-23 vide memo. Exh. P.N. All the appel--lants were arrested on 9th October, 1977. At the time of arrest, Shaukat Riaz and Muhammad Iqbal appellants were found to be injured. The S.-I. P. W. 14 prepared their injury statements Exh. P. H. And P. J. Respectively and sent them for medical examination to the hospital.
6. On 13th October, 1977 Habibur Rehman appellant got recovered blood-stained dagger P. 6 from his house. On the same day Sarfaraz appellant got recovered sota P. 7, Shaukat Riaz appellant led to the recovery of blood-stained chhuri P. 8 from his shop and Iqbal appellant got recovered blood-stained dagger P. 9 from the shop of Shaukat Riaz appellant. These articles were taken into possession vide memos. Exhs. P. O., P. Q-, P. R. And P. S. Respectively. The blood-stained daggers and blood-stained chhuri were sealed into parcels. After completing necessary investigation the challan was submitted against the appellants in Court.
7. At the trial, the prosecution examined in all fourteen witnesses, and also tendered in evidence the report of the Chemical Examiner Exh. P. A. A. And the report of the Serologist Exh. P. B. B. Riasat Ali P.
W, 8, Javed P. W. 9 and Muhammad Ishfaq P. W. 10 were examined as eye witnesses to the occurrence. Riasat Ali is a real brother of the deceased. Javed and Riasat Ali P. Ws. Are injured. The other eye-witnesses, i.e. Ghulam Mustafa, Nazir Ahmad and Gulbaz were given up as unnecessary.
Muhammad Azam P. W. 11 narrated the earlier incident. Abdur Rehman P. W. 12 was examined to prove recoveries of the weapons of offence from all the appellants. The other witness to prove recoveries is Muhammad Shah, S.-I. P. W.
14. The third witness of recoveries, i.e. Muhammad Rafiq was not produced. Muhammad Shab, S.-I. P. W. 14 was examined as investigating Officer.
Dr. Imtiaz Ahmad Gill, P. W. 6 had medically examined Muhammad Salam deceased. He observed 5 stab wounds, 5 incised wounds, an abrasion and 2 contused wounds, on his person. Injuries Nos. 1 and 2 were kept under observation, injury No. 3 was declared grievous, the rest were found to be simple. Injuries Nos. 6, 7 and E were found to have been caused by blunt weapons and the rest with sharp-edged weapons. Exh. P. C. Is the carbon copy of the medico-legal report. He also conducted the medical examination of Javed P. W. 9 and found 2 stab wounds, one on the right chest which was found to be grievous and the other on the left thigh which was declared simple. On the same day, i.e. 8th October, 1977 he examined Riasat Ali P. W. And observed a lacerated wound on the right side of the forehead and an incised wound on the right side of the buttock ; lacerated wound was found to have been caused by a blunt weapon and the incised wound by a sharp-edged weapon.
Both the injuries were declared to be simple. He observed 2 injuries on the person of Ghulam Mustafa P.W. (not produced), a lacerated wound on the top of the head and an abrasion on the right shoulder. Both the injuries were declared simple.
The same doctor also conducted medical examination of Nazir Ahmad and found a lacerated wound on the right side of the forehead. The injured also complained of pain in his chest. The injury on the forehead was kept under observation but was later declared to be simple. Exhs. P. C , P. D.. P.
E., P. F. And P. G. Are respectively the correct carbon copies of their medico-legal certificates.
Dr. Bashir Hussain Kahloon, who had conducted the post-mortem examination on the dead body of Muhammad Salam deceased, was not available. Secondary evidence was allowed to be produced. Dr. Imtiaz Ahmad Gill has proved the post-mortem report Exh. P. K. Regarding the death of Muhammad Salam deceased. According to the post-mortem report, the death was due to shock and haemorrhage, as a result of injuries Nos. 1 and 2 collectively. Even in the post-mortem report 13 injuries have been enumerated, 10 of them by sharp-edged weapon and 3 by blunt weapons.
8. Riasat Ali (P. W. 8) complainant while making statement in the Court has narrated the whole occurrence. According to him Muhammad Azam P. W. Had told him and Muhammad Salam deceased that he was slapped by Shaukat Riaz appellant when he had gone to the house of Ghulam Mustafa P. W. To deliver him an invitation regarding some marriage. Muhammad Salam deceased had gone to complain to Shaukat Riaz appellant as to why. He had slapped Azam. They started exchanging hot words and quarrelling. Hearing the noise, he went to the spot and saw that the appellants on one side and Muhammad Salam deceased on the other, were exchanging brick- bats and bottles with each other. According to him, on his, and Nazir Ahmad P. W's. Intervention the matter was hushed up. The accused went to their home but they returned soon when he alongwith other associates was still present there. Shaukat Riaz appellant was armed with chhuri, Habibur Rehman appellant and Iqbal appellants were armed with daggers and Sarfaraz appellant was armed with a sota. Shaukat Riaz appellant after raising lalkara and exorting his co-accused not to spare the life of Salam, inflicted 3 chhuri blows on the abdomen, chest and right arm of Muhammad Salam deceased, who fell down. Thereafter, Habibur Rehman appellant gave 2 dagger blows on the left arm and left buttock of Muhammad Salam deceased. When Javed and Ghulam Mustafa P. Ws. Intervened, they were given injuries by Habibur Rehman and Iqbal appellants.
Sarfaraz appellant gave injuries to Ghulam Mustafa P. W. When he and Nazir Ahmad intervened, Sarfaraz appellant gave one injury each to him and to Nazir Ahmad P. W. Iqbal appellant gave adagger blow on his abdomen. P. Ws. Muhammad Ishfaq and Gulbaz who arrived at the spot, also saw the occurrence and rescued the complainant and the other injured persons.
Muhammad.Salam deceased who was unconscious, was shifted to the Civil Hospital where he died after the medical (examination at about 4 p.m. The complainant after getting his medico-legal certificate. And the medico-legal certificates of the. Deceased Muhammad Salam, P. Ws. Ghulam Mustafa, Javed and . Nazir Ahmad, went to the Police Station and lodged the F. I. R. Exh. P. L. At Police Station Factory Area. The complainant has also stated that the motive for the occurrence was suspicion of the appellants that Salam deceased had illicit intimacy with Mst. Yasmin, a daughter of their paternal aunt. The other two eye. Witnesses, namely, Javed P. W. 9 and Muhammad Ishfaq P. W. 10 have by and large supported the eye-witness account given by the complainant regarding the occurrence. Abdur Rehman P. W. Who had witnessed the recoveries of weapons of offence from all the appellants has deposed as P. W. 12 that the weapons were recovered in his presence. He has denied the suggestion that he had any relationship with the complainant party. He has stated that he is a refugee from District Hushiarpur whereas the complainant party are, refugees from District Jullundar. Muhammad Azam P. W. Has stated that when he had gone to visit the house of Ghulam Mustafa P. W., Shaukat Riaz appellant had slapped, him. .
9. The appellant Shaukat Riaz in his statement under section 342, Cr. P. C. In answer to question No. 12, do you want to say anything else stated :- "I am innocent Muhammad Salam deceased used to tease Mst. Yasmin on her way to school. On the day of occurrence, at about 2-30 p.m. Mst. Yasmin returned home from the school: She raised alarm, whereupon I and Iqbal accused reached the spot. Iqbal attacked Muhammad Salam by grappling with him. Muhammad Salam in return attacked with a chhuri in his hand and proclaimed as to why be had intervened as he was only a servant. At that time, I brought a chhuri which I was using for cutting onion and I gave few blows to Muhammad Salam with that chhuri on the spot.
Javed P. W. Caused injuries to me with a broken bottle. Thereupon I gave a chhuri blow to him and felled him injured to the ground. The residents of the Mohallah collected there. They caused injuries to Ghulam Mustafa, Riasat Ali, Salam and Nazir Ahmad P. Ws. At that time. At that time Mst. Yasmin told us that the complainant party wanted to take her away in the car standing at the corner of the street. Habib accused was not present on the spot. He had gone to the Courts. Sarfraz Ahmad was also not present there, "as be was at his shop."
Muhammad Iqbal appellant in answer .To the same question, `do you want to. Say anything else?
Stated that he owns the statement of Shaukat Riaz appellant.. The other two appellants denied to have participated in the occurrence.
10. Learned counsel for the appellants has inter alia argued that the existence of suspicion of illicit intimacy of Muhammad Salam deceased with Mst. Yasmin stands admitted but this illicit intimacy was not the motive for this occurrence. In fact action and conduct of the deceased on the day of occurrence regarding this very fact was rather a matter of provocation for the appellants Shaukat Riaz and Iqbal and they had acted in provocation, and when attacked they in self-defence had caused injuries to the complainant party. He has contended that the recoveries have been planted and that Abdur Rehman P. W. Is not worth reliance as he not only lives at a distance of one mile from the place of occurrence but was also a chance witness. He was not even specifically asked by the Investigating Officer to join the recovery proceedings. He has contended that even otherwise the recoveries from lqbal appellant and Shaukat appellant from the shop are of no value as the shop was jointly possessed. With regard to recoveries from Sarfaraz, it is contended that the sota was not found to be blood-stained. Recovery from Habibur Rehman, appel--lant, according to him is also not proved for lack of evidence. He has also laid stress that no reliance can be placed on the evidence of Muhammad Ishfaq P. W. 10 as he was not injured.
11. On the other hand learned counsel for the State and the complainant have contended that the.
Eye-witness account is reliable, that two of the eye-witnesses are injured and their presence cannot be doubted and is not even denied, that the eye-witness account stands corroborated by the recoveries of weapons of offence, 3 of which were found to have been stained with blood. It is contended that the medical evidence also - lends support to the eye-witness account with regard to the nature of injuries suffered by the deceased and the P. Ws.
12. Before entering upon arguments of the parties it may be of interest to mention .Here that the State had filed an appeal against the acquittal of appellants Habibur Rehman, lqbal and Sarfraz under section 302, P. P. C. Which was dismissed vide orders dated 29th March, 1981 by a Division Bench consisting of my learned brothers Dr. Javid Iqbal and Rustam S. Sidhwa, JJ. Revision Petition No. 836/80 filed by the State against Shaukat Riaz appellant for enhancing the sentence of imprisonment for life to death has also been dis--missed . By the same Division Bench vide- separate .Order dated 29th March, 1981.
13. The main point in this case is whether the pleas taken by Shaukat Riaz and lqbal appellants have some force or not. In this case, apart from the fact that the injuries on the person of Shaukat Riaz were opined to have been self-suffered, by the doctor, the other important factor is that the deceased had .Suffered 13 injuries, some of them were stab wounds, some were incised wounds while 3 were contusions and abrasions. Four P. Ws. Were injured and each of them suffered 2 injuries. There are incised wounds and lacerated wounds on these witnesses. Thus, 21 injuries were suffered by the complainant party while only 4 injuries, 2 each have been suffered by the appellants Shaukat Riaz. And lqbal. This state of affairs by itself speaks a lot against the plea taken by the two appellants. Their statement that Muhammad Salam had come to abduct Mst. Yasmin after having made preparations, accompanied by others, is another important factor which goes against the appellants because, had such preparations been made, whatever might have been the fate of Muhammad Salam, so far as suffering death or having lived, but the result would have been more harmful to the appellants insofar as receiving injuries. The number of the persons on the side of the complainant, according to their own admission, was larger and thus they would not have succeeded in causing so many injuries acid suffering only 4 injuries in such a situation. With regard to the injuries suffered by the two appellants, the explanation is obvious. The learned trial Court has rightly held that the incident of brick-bating and using the bottles was not a separate incident as stated by the prosecution, and that this incident and the incident of injuries caused by the appellants to the deceased and the P. Ws. Was one and the same, so it is quite possible that those injuries were suffered by the appellants during the exchange of brick-bats and using bottles against each other. In the circumstances, I do not find any difficulty in holding that there is no weight in the plea of provocation and self-defence taken by the two appellants. Another factor which lends support to this view is that Iqbal appellant was found innocent and was not being challaned. Of course, the opinion of the police officer is not relevant fact for deciding the case, still the fact can be taken into account that a person who in his first plea had pleaded non- participation in the occurrence, has taken up a plea of provocation and self-defence during the trial. Iqbal appellant is a servant of Shaukat Riaz. He was a young mar! Of 18 years at that time. It is not difficult to conclude that he just fell in line with Shaukat Riaz appellant for taking up this plea to lend support to the plea of his master, i.e. Shaukat Riaz appellant.
14. The argument of-the learned counsel for the appellants that no importance should be attached to the evidence of Muhammad Ishfaq, not being an injured P. W., even if granted, will make no difference to the case of the prosecution because not only Riasat Ali and Javed P. Ws. Are injured persons but the other important fact that there is no relationship of Javed P. W. 9 with the deceased or the complainant and no enmity has been suggested to Javed P. W., makes him an independent and a reliable witness. In the circumstances, there is no doubt in my mind that there is sufficient reliable ocular evidence in this case. With regard to the recovery of weapons of offence, there is no reason to disbelieve the evidence of Abdur . Rehman P. W. He is a pensioner. He has no relationship with the complainant party, no enmity with the appellants A has been suggested. It is not even the case of the defence that he was a stock-witness. His statement is also corroborated by Muhammad Shah, S.-I. (P. W. 14). The evidence of recovery of weapons thus also cor--roborates the eye-witness account.
15. For the reasons enumerated above,, there is no merit in this appeal. The same is dismissed.
16. The appellants shall, however, be given the benefit of the provisions of section 382-B of the Code of Criminal Procedure. Their period of detention during which they remained in jail at the trial shall be considered towards the sentence already undergone. The appellant Habibur Rehman, Sarfraz Ahmad and Muhammad lqbal are on bail. They shall be arrested and lodged in-jail to suffer the remaining portions of their sentences.
17. The learned trial Court has shifted the evidence and has considered the case of each of the appellants on individual basis liability. The State appeal and the revision petition filed, have already been dismissed. The order of the learned Additional Sessions Judge does not call for any interference. The revision petition is also dismissed.