' Mazharul Haq J.--Arshad Javed (20) his father Muhammad Ashraf (55), Riaz Ahmad (18) and his brother Muhammad Malik (30) were tried for the murder of Muhammad Asif. Arshad Javed was convicted under section 302, P.P.C. And sentenced to death and to a fine of Rs,8,000 in default to suffer six months' R. I. Further. Half of the fine was ordered to be paid as compensation to the heirs of the deceased. The remaining three accused were acquitted. Appeal of the convict,the connected murder reference and the revision of Ghulam Mustafa are before us.
2. Mst. Safia lived in Mohallah Marri. Since she had no male issue, she took a boy from the Lady Willington Hospital, Lahore and adopted him. He was called Shahid. He grew up and was about 10/11 years of age at the time of occurrence. On 25th July, 1980 at 8 a.m. Shahid and Afzal alias Apphu a boy of his age quarrelled with each other. Afzal's brother Riaz and Javed accused residents of Mohallah Rajput came there. Ghulam Mustafa informant's sister Mst. Safia and his nephew Muhammad Asif also turned up. Riaz and Javed accused abused Safia. She abused them back.
Riaz and Javed grappled with Asif but the residents of the Mohallah intervened and separated them. While leaving Javed and Riaz accused threatened that they would avenge the insult.
According to the prosecution, the same day at 2-30 p.m. Ghulam Mustafa, informant and his nephew Muhammad Asif were on their way to the house of Mst. Safia; as they passed through the lane known as Hakeem Sharifwali and they reached near the house of Murtaza brother of the informant, they saw Muhammad Malik, Muhammad Riaz, Muhammad Ashraf empty-handed and Javed armed with Chhuri approaching them. Riaz raised a Lalkara that they had come to avenge the morning incident. Muhammad Ashraf gripped Asif and Javed inflicted a knife blow to him just above the abdomen which went through and through and Asif fell down, thereafter Muhammad Malik kicked him. The alarm attracted Ghulam Murtaza and Muhammad Amin. They also saw the occurrence. After the accused left, Ghulam Mustafa proceeded towards the police station while his other relations carried Asif's dead body to the hospital. On the way Ghulam Mustafa met P.W.11 Ghulam Sarwar, S.1. Of Police Station Daska in front of the Civil Rest House at 3-45 p.m. He made statement Exh.P.E. To him on the basis of which formal F.I.R. Exh.P.E/1 was registered at Police Station, Daska at 4 p.m. The same day. The S.I. Went to Civil Hospital, Daska where the dead body of Asif was lyirg. He prepared the necessary documents and sent the dead body for the post-mortem examination.
3. P.W.1 Dr. Mumtaz Bhatti, Medical Officer, Civil Hospital, Daska on 25th July, 1980 at 6-10 p.m. Held the autopsy and found the following injuries on the dead body of Muhammad Asif:-
(1) An incised wound transverse in direction 5 x 3 c.m. Chest cavity deep direction was inward and upward and to the left side situated Just above the epigastrium at the lower end of sternum in middle.
(2) An incised wound 2} x 1} c.m. Going deep inward and to right side situated on the back in the mid line at the level of lower part of chest vertical in direction.
(3) An abrasion 7 x 3 c.m. On outer aspect of left shoulder.
(4) An incised wound 2 x c.m. Skin deep on outer aspect of left elbow.
(5) A contusion 3 x 1 c.m. On the back of left upper arm in lower part Under injury No,1, skin muscle lower part of the sternum bone diaphragm were cut, right side of heart was also cut. Under injury No,2 skin muscle and liver were cut. Injuries cutting through 8th and 9th ribs on back close to mid line on right side. Liver had a cut 4 x 1 x 1i c.m. On its back side. The remaining injuries were superficial. Stomach was empty. Large intestine contained faecal matter, bladder was full of urine.
Injuries Nos. 1, 2 and 4 were caused by a sharp-edged weapon, rest with blunt. Injuries Nos. 1 and 2 were dangerous to life. Death in his opinion was due to shock and excessive hemorrhage caused by injuries Nos. 1 and 2, which were sufficient to cause death in the ordinary course of nature.
4 . On 27th July, 1980, the S. I. Arrested Arshad Javed and Muhammad Riaz. On 29th July, 1980, he got them medically examined and prepared their injury statement. The same day, P.W.1 Dr. Mumtaz Bhatti, Medical Officer, Civil Hospital, Daska examined Arshad Javed and found "A" healing wound x 1/4 c.m. Depth nil on left side of front part of head 5 c.m. Behind the forehead. Injury was simple in nature and was caused by a blunt weapon, its duration was about 3 to 4 days. On the same cloy, doctor examined Muhammad Riaz and found "An abrasion 1 x c.m. On the inner part of back of right elbow joint." This injury was simple in nature caused by a blunt weapon within a duration of about 3 to it days. On 1st August, 1980 the S.I. Arrested Muhammad Ashraf and Muhammad Malik. The same day, Arshad Javed in custody led to the recovery of Chhuri P.2 from his house. It was taken into possession, v.Ide memo. Exh. P.F. Attested by P.W.4 Muhammad Sharif and Abdul Majeed (given up as being unnecessary) besides P.W.11 Ghulam Sarwar, S. I, After completing the investigation, the accused were sent up for trial.
5. Admitting his relationship with the co-accused, Arshad Javed denied guilt and ascribed the case to party faction. Explaining his injuries, he asserted "that in the street brawl over the children when he wanted to intervene and separated two groups, the deceased gave him a hammer blow on the head after which he went home." Riaz Ahmad, Muhammad Ashraf and Muhammad Malik denied their participation in the occurrence and said that the case was foisted against them due to party faction as they were related to the other accused. Explaining his injuries, Riaz said that he suffered it by a fall. Muhammad Malik asserted that he had also been declared innocent by the police. No accused led defence evidence.
6. Relying on the evidence of the three eye-witnesses namely P.W.7 Ghulam Mustafa, P.W.8 Ghulam Murtaza and P.W.9. Timer Din and evidence of the recovery of blood-stained Chhuri P.2 at the instance Arshad Javed, accused,trial Court came to the conclusion that the prosecution case was satisfactorily proved against him. It gave the benefit of doubt to Riaz, Ashraf and Muhammad Malik for the reasons that Ashraf allegedly caught hold of Asif from behind but there was no evidence to show that the clothes of Ashraf were besmeared with blood. Further Muhammad Malik was said to have kicked the deceased when he had already fallen on the ground but he was found to be innocent by the police. Since Riaz was attributed Lalkara and had caused injury to no one, he was also extended the benefit of doubt.
7. Criticizing trial Court's finding, learned counsel for the appellant contended that three accused were acquitted because it was not considered safe to rely on the evidence on the eye-witnesses.
Malik accused, was found innocent by the police and this also weighed with the trial Court while giving him the benefit of doubt. It was further argue that these circumstances indicate that the eye-witnesses have stage-managed their presence at the spot and here put up an exaggerated version, therefore, they have failed to explain the injuries of the accused. It was further argued that P.W.9. Umer Din was not named in the F.I.R. His name was not even mentioned in the inquest report Exh. P.J. And charge report Exh.D.B. On the other hand, Muhammad Amin though named in the F.I.R.
But was given up as having been won over and the remaining two eye-witnesses namely P.W.7 Ghulam Mustafa (informant) and P.W.8 Ghulam Murtaza were close relations of the deceased being his maternal-uncles. Learned counsel also laid stress on the fact that the report in this case was not made at the Police Station. P.W.7 Ght.,.Am Mustafa (informant) made the statement in the Chauk, Civil Rest House, Daska which was at a distance of only 100 yards from the Police Station, Daska. On the other hand under cross-examination the Investigating Officer admitted that Exh. D.E.
Was a correct copy of the report entered in the daily at 3-30 p.m. On 25th July, 1980 on the basis of a Rukka sent to him by the Medical Officer, Daska. A perusal of this report would show that information had already been received by the Investigating Officer and it was thereafter that he recorded the statement Exh.P.E. Of Ghulam Mustafa which was made the F.I.R. In this case.
According to the learned counsel for the appellant, P.W.7 Ghulam Mustafa (informant) was not present at the place of occurrence. He reached there later because had he been there and seen the occurrence, he would have then reached the police station much before the information sent through a Rukka by the Medical Officer, Civil Hospital, Daska, to the S.I. At 3-30 p.m. Which was incorporated by him in the daily diary. It was further argued that on the other hand, informant's case was that soon after the occurrence,he left the police station while other relations of the deceased carried the dead body to the hospital. The informant met the S.I. On the way and made statement Exh.P.E. To him. It was recorded at 4-45 p.m. Whereas in .Exh.D.E. The time mentioned about its receipt was 3-30 p.m. The argument is that since the informant reported the matter later than the information conveyed through Exh.D.E. Was proof of the fact that the F.I.R. Was made after due deliberation. We have considered this aspect of the case and are of the view that the difference in the timing of the two reports would be negligible because it is also mentioned in Exh.D.E. At the close of its narration that the information was received at 3-45 p.m. No doubt it is mentioned at the close of statement Exh.P.E. That the statement was being sent to the police from "Chauk Civil Rest Hospital" but the evidence is that it was recorded at "Chauk Civil Rest House." This discrepancy would be immaterial because under cross-examination, the Investigating Officer admitted that the police station was at a distance of 150 yards from Chauk Civil Rest House and that from the said Chauk, the hospital was 300 yards. In view of this admission it can be safely concluded that the three places i,e, the police station, hospital and the civil rest house are situated in different directions in the same Chauk. Stress was also laid on narration in Exh. D.E. Wherein, it was mentioned that earlier information about the arrival of the dead body was conveyed on telephone. This again in our opinion would not mean that much time had lapsed between the information on telephone and the one sent through Rukka by the doctor.
8. Taking into account, the submissions made by the appellant's learned counsel, we are of the opinion that there being no previous enmity between the accused and the deceased and their relations, there would be no question of false implication on a capital charge. We also find that Arshad Javed, accused, in his statement at the trial admitted that there w4s a brawl over children's fight and in his attempt to separate the rival parties, the deceased gave him a hammer blow on his head after which he left. He however, did not take up the plea of self-defence. At the same time, he did not admit the earlier incident which was said to have taken place in the morning at 8 a.m. On the other hand, we find that P.W.10 Mst. Safia Begum, sister of the two eye-witnesses, who claimed to be present when the morning incident took place under cross-examination admitted that Asif was unarmed and she did not know how he injured Arshad Javed and Riaz, accused. She further admitted that she had not seen Asif giving any fist blow to them. Prosecution did no disclose the reason of the fight between the children which led to the involvement of the elders. The story of the morning incident is that Shahid the adopted son of P.W.10 Mst. Safia Begum and Afzal, a brother of Riaz and Malik, the acquitted accused fought with each other. Mst. Safia Begum, her brother Ghulam Mustafa (informant) and Asif (deceased) son of Mst. Safia Begum's sister reached there but they did not interfere. As soon as Riaz and Javed, accused reached there, they started abusing Mst. Safia Begum. She abused them back. Asif grappled with Riaz and Javed but they were separated. As pointed out earlier, there is no mention of beating to the accused Strangely enough, the informant, a brother of Mst. Safia and a maternal-uncle of Asif did not interfere. Some Mohallahdars were said to have interfered who were not produced as witnesses. It is also noteworthy that Asif grappled with the two accused. Under these circumstances, if at all there would be hitting during grappling, Asif was more likely to be hit because he was pitched against two persons. But strangely enough, there are injuries to Arshad Javed and Riaz which the prosecution tried to conceal, but the State counsel would like us to believe that these injuries were suffered by the accused in the morning incident about which we have concluded that Asif being alone against the two accused was more likely to be hit. It may also be added here that Mst. Safia Begum was said to have been abused by Arshad Javed and Riaz. The motive as such would be against the accused to the relations of Mst. Safia Begum because the accused had insulted their sister. On the other hand, as to the main occurrence, the prosecution case was that Asif and the informant were going together to Mst. Safia Begum's house and as they reached near P.W.8 Ghulam Murtaza's house, there was a Lalkara from Riaz after which Ashraf caught hold of Asif and Arshad Javed gave the solitary fatal blow to him. As the narration goes, this occurrence would not take more than a second. Under these circumstances, would P.W.8. Ghulam Murtaza who was inside his house and allegedly came out on the alarm be in a position to witness the occurrence from start to finish, very likely he would reach late. It was a broad day-light occurrence which took place on a thoroughfare where other persons were around and Asif was also not alone but neither the informant nor others stopped the accused. Holding of Asif by Ashraf was rightly disbelieve by the trial Court because there was no evidence of Ashraf's clothes having besmeared with blood.
9. Taking into consideration the analysis of the evidence of the two incidents discussed above, we are of the view that in all probability, there was only one occurrence between the parties which has been split into two separate incidents in order to introduce premeditation. In this view of the matter, we are of the opinion that a sudden fight ensued over children's fight in which Arshad lived was injured and he inflicted the solitary fatal blow to the deceased. We, therefore, alter his conviction to section 304, Part.1, P.P.C. And sentence him to 10 years' R.I. His sentence of fine Rs,8,000 is maintained, in default, he shall suffer six months R.I. Further.