' (1) Jallah aged 27, armed with Sota, (2) Ilahi aged 40, armed with Sota, (3) Yusuf aged 35, armed with Sota, all sons of Rajeda and, therefore, real brothers, (4) Yara son of Abdullah, aged 22, armed with Sota, (5) Ismail son of Sada, aged 27, armed with Sota, and (6) Zaman son of Raja, aged 35, armed with Sota, have been convicted and sentenced vide judgment, dated 15th June, 1981 of the Additional Sessions Judge, Sargodha as follows: Each of them was convicted under section 302/149. P.P.C. For the murder of Muhammad son of Saleh Muhammad aged 70 their relative and each of them was sentenced to life imprisonment plus fine of Rs, 5,000 or in default to undergo three months simple imprisonment with the direction that if the fine was realized from them, it should be raid as compensation to the legal heirs of the deceased. Each of them was further convicted under section 307/149. P.P.C. For murderous assault on Kar amali (P.W. 9), real brother of the deceased, and Muhammad Nawaz (not produced), nephew of the deceased, and sentenced thereunder to five years' rigorous imprisonment. Each of them was likewise convicted under section 148, P.P.C. And sentenced to one year rigorous imprisonment. The sentences of imprisonment were ordered to run concurrently. The appeal of the convicts is being taken up and disposed of alongwith Criminal Revision No, 437 of 1981, for enhancement of the sentence of life imprisonment awarded to the convicts to death, by this judgment.
' It may be pointed out at this stage that all the appellants are inter-related. As stated above, Jalla, Ilahi and Yusuf appellants are real brothers. Ismail and Zaman appellants are first-cousins of Jalla, Illahi and Yusuf appellants. Zaman appellant is paternal-uncle of Yara appellant and Yara appellant is thus nephew of Jalla, Ilahi and Yusuf appellants. Even the deceased is related to them being member of the same family.
2. The occurrence took place at 5-30 p.m. On 16th April, 1980 within the area of Chak No, 30 Shumali at a distance of eight miles from Police Station Saddar, Sargodha. Statement (Exh. P.L/1) was made by Karamali (P.W.9) in the Civil Hospital, Sargodha on 17th April, 1980 at 11 a.m. And it was recorded by Muhammad Siddiq A.S.I. (P.W.11). Who arrived thereon receiving the information. On the basis of the aforesaid statement formal F.I.R. (Exh. P.L) was registered at Police Station Saddar, Sargodha, by Muhammad Asghar M.H.C. (P.W.4) on the same day at 11-20 a.m. Initially a case was registered against the appellants under section 307/325/148/149, P.P.C. But on the death"of the deceased at 5-10 a.m. On 20th April, 1980 in the hospital section 302, P.P.C. Was added thereto.
3. The motive for crime, as stated in the F.I.R., is that two days before the present occurrence i,e, on 14th April, 1980, a niece of the deceased, namely, Mst. Bano, had died and she was buried in the graveyard of village Ajnala. After her burial, her brother Sarja (not produced) gave Rs, 4 to Phagni Kumhar as grave-digging charges. But the said Phagni (not produced) complained that the amount paid was insufficient. At this stage the deceased intervened and told him that the amount received by him had been fixed by the Baradari and that if he wanted more, he should demand on the occasion of the Qui ceremony. On this, Jalla appellant is stated to have sided with Phagni and abusing the deceased demanded that the amount to be paid to the grave-digger should be settled there and then. Thereupon there was an exchange of hot words between the two of them.
However, they were separated by Muhammad Ashraf (P.W.7) and Shahu (not produced). Two days thereafter i,e, on the fateful day, it was the occasion of Qui ceremony of Mst. Bano deceased. The deceased and Karamali P.W. Had gone to attend the said ceremony and similarly all the appellants were also present there. When the ceremony was over, all the appellants left for their village Ajnala whereas the deceased and the complainant kept on sitting there. However, after some time the deceased and Karamali P.W. Also left for their village, Chak No, 30 Shumali. At the fateful time when they had crossed the Sem Nala and had reached within the area of their Chak, they were confronted by the appellants who were armed with Sotas and who had been sitting in ambush for them. At this stage Jalla appellant is stated to have raised Lalkara to the effect that they would teach the deceased a lesson for abusing them and for insulting them. Thereafter, they attacked the complainant side with their respective Sotas.
4. In the F.I.R. According to the statement of Karamali P.W., the occurrence took place in the following manner: Ilahi appellant gave a Sota blow which fell on the head of the deceased. Then Jalla appellant gave a Sota blow which also fell on the head of the deceased. Thereafter. Yara appellant gave a Sota blow which fell on the left wrist of the deceased and thus broke the same.
Then Ismail appellant gave a Sota blow which fell on the left shoulder of the deceased who fell down on the ground. Thereafter, Zaman appellant gave a Sota blow which fell on the head of Karamali P.W. Then Yusuf appellant gave a Sota blow which also fell on the head of Karamali P.W.
Thereafter Yara appellant gave a Sota blow which fell on the left shoulder of Karamali P.W. And finally Ismail appellant gave a Sota blow which fell on the waist of Karamali P.W. On their alarm were attracted to the scene of crime Muhammad Nawaz, their nephew (not produced), Hayat and Sultan (P.W.10) who were standing nearby. They pleaded the appellants not to cause further injuries to the complainant side. In the meantime, Jalla appellant gave a Sota blow which fell on the right waist of Muhammad Nawaz (not produced). Eventually the appellants left the scene of crime alongwith their weapons of offence. The deceased was brought to his house in an injured condition by the other eye-witness. There was no arrangement for transporting him t. The hospital. He, therefore, remained in the village for the night. On the next day, Karamali P.W. And others brought him to the Civil Hospital at Sargodha in an unconscious state and thereafter on the arrival of the police officer, the statement of Karamali P.W. Who had himself received injuries in the course of the occurrence, was recorded.
5. Jalla, Illahi, Yusuf, Ismail and Zaman appellants were arrested on 20th April, 1980 by Muhammad Siddiq A.S.I. (P.W.11), whereas Yara appellant was arrested by him on 22nd April, 1980. It may by noted in the instant case that blood-stained Sota (Exh. P.9) was recovered at the instance of liahi appellant and taken into possession vide Memo. Exh. P.S. Similarly blood-stained Sota (Exh. P.10) was recovered at the instance of Jalla appellant and taken into possession vide Memo. Exh. P.T.
Both these reoveries were effected on 26th April, 1980 and they are attested by Karamali (P.W. 9), All Muhammad (not produced) and Muhammad Siddiq A.S.I. (P.W.11). According to the report of the Serologist Sotas (Exh. P. 9 and Exh. 10) were found to be stained with human blood. Sotas were also recovered from the rest of the appellants but they were not stained with blood. For instance, Sota (Exh. P.5) was recovered from Zaman appellant, Sota (Exh. P.6) was recovered from Yusuf appellant, Sota (Exh. P.7) was recovered from Ismail appellant and Sota (Exh. P.8) was recovered from Yara appellant. Since these Sotas were found not to be blood-stained, they were not sent for chemical examination.
6. The appellants, in their statements before the trial Court, totally denied having participated in the occurrence. They disowned the recoveries and stated that they had been falsely implicated by the complainant party due to their enemies. They pleaded that they were innocent but they did not produce any defence.
' The prosecution has produced two eye-witnesses of the occurrence, namely, Karam Ali (P.W. 9), brother of the deceased who is injured, and Sultan (P.W. 10) whose brother is married to the sister of the deceased. Muhammad Nawaz and Hayat were cited as eye-witnesses in the F.1.R, but have not been produced. According to the eye-witnesses account, Muhammad Nawaz (not produced) had received a Sota blow on his left waist at the hands of Jalla appellant. The eye-itnesses hava been relied upon by the trial Court.
8. Dr. Malik Muhammad Khan (P.W.2) on 17th April, 1980 at 9-40 a.m. Medically examined the deceased, while he was still alk -, and found on his person the following injuries: Lacerated wound on the left parietal region, another lacerated wound on the left p-.1-letal region. Both these injuries are attributed to Ilahi and Jalla appellts. There was a swelling with contusion on left forearm with fracture of the bone thereunder. This injury is attributed to Yara appellant; then a contusion on the top right shot,Ider with suspected fracture of underlying bone. This injury is attributed to Ismail appellant. The first two injuries were kept under observation and X-ray of skull was advised. The third injury was grievous, while the 14th injury was kept under observation and X-ray was advised.
All the injuries were caused by a blunt weapon. The figured was unconscious and was vomitting. He was semi-conscious at the time of arrival. For the coming 3/14 days he was unfit to make any statement. Eventually he died of the injuries in the hospital on 20th April, 1980 at 5-10 a.m. The same doctor conducted post-mortem examination on the dead body of the deceased on 20th April, 1980 at 6-50 p.m. And noted the .,ame injuries on his person. The death in his opinion had resulted dot.
To the first two head injuries which had caused damage to the brain and these injuries were sufficient to cause death in the ordinary course of nature. As I have pointed out earlier, both these injuries are attributed to Ilahi and Jalla appellants.
' On 17th April, 1980 at 9-00 a.m. Dr. Malik Muhammad Khan (P.W. 2) conducted medical examination of Karam Ali P.W. And found on his person a lacerated wound on the top and front scalp, lacerated wound on the top and middle scalp complained of pain on left shoulder back and a contusion on left gluteal region. All the injuries had been caused with a blunt weapon. The injuries suctained by him were eventually declared as simple.
' On the same day at 9-20 a.m. He medically examined Muhammad Nawaz (not produced) and found on his person: complaint of pain on right gluteal region. The injury was caused with a blunt weapon and was simple in nature. It may be pointed out at this stage that two head injuries on the person of Karam Ali P.W. Are attributed to Zaman and Yusuf appellants. His third injury is attributed to Yara appellant and his fourth injury is attributed to Ismail appellant. All these injuries are simple.
The injury on the person of Muhammad Nawaz (not produced) which is simple in nature is attributed to Jalla appellant.
9. I have heard learned counsel for the parties and carefully perused the record. The motive version is being supported by Muhammad Ashraf (P.W.7) and Karam Ali (P.W.9) who are related to both the sides. I have already pointed out that not only the members of the accused party are inter se related, the deceased and the P.Ws. In the instant case are also mutually related. According to the eye-witness account as well as Ashraf P.W. There is no background of previous enmity between the parties. Consequently the immediate cause of the occurrence was the incident which took place in the graveyard two days before the occurrence. The motive has been relied upon by the trial Court and I also rely upon the same. So far as the ocular testimony is concerned, it comes forth from Karam Ali P.W. Who may be the brother of the deceased but injured in the instant case as well as by Sultan P.W. Whose brother was married to the sister of the deceased. It may again be said here that the two eye-witnesses produced by the prosecution are not only closely related to the deceased but are also related to the members of the accused party. The trial Court has believed the ocular testimony in the instant case and I see no reason why their testimony should be discarded particularly when they had no hostility and had no motive to falsely implicate the appellants. So far as the recovery evidence is concerned, recoveries of Sotas particularly from Ilahi and Jalla appellants, according to the report of the Serologist were found to be stained with human blood. Ilahi and Jalla appellants are stated to have caused fatal injuries on the head of the deceased. The rest of the Sotas recovered from the other appellants were not stained with blood and, therefore, were not sent for chemical examination. The medical evidence is supporting the ocular testimony in the instant case. Thus, in my view ca!'e of the prosecution is being supported by the ocular account given by Karam Ali and Sultan P.Ws. As well as by the motive version provided by Muhammad Ashraf P.W. And Karam Ali P.W. And the medical evidence besides being corroborated by the recovery evidence particularly of those recoveries effected from Ilahi and Jalla appellants. The only argument which is being raised by learned counsel for the appellants, in the instant case, is in respect of the non-applicability of section 149, P.P.C. And possibility of its applicability is (i,e, under section 34, P.P.C.) in a devisible form. His reasoning is that there was no background of previous enmity between the parties and that if any incident took place it was merely a trivial incident involving a sum of Rs,
4. This incident took place two days before and the parties were separated. However, at the QuI ceremony of Mst. Bano deceased, being members of the Baradari they arrived there, the appellants all of them stated to be armed with Sotas participated in the QuI ceremony and then left. The deceased and Karam Ali P.W. Had also participated in the Qul ceremony and might have left possibly more or less at the same time.
Because of the previous incident, which was trivial, it may have ignited a quarrel on which the members of the accused party had attacked the complainant side. After all they were members of the same family. Thus, learned counsel argues that sec on 149, P.P.C. Could only be applicable if there was intention on the part of the members of the accused party to form an unlawful assembly. If the intention was not there, then section 149, P.P.C. Could not be applied and consequently the principle of vicarious liability, would not be involved. In other words, each person or group of persons would be liable for his or their own act. In support of his argument learned counsel is relying on Babar Ali v. State PLD 1968 SC 372, Pehlwan v. The Crown 1969 P Cr. L J 1247, Khan Muhammad wad another v. State 1981 SCM R 597 and Muhammad lnayat V. State 1983 P Cr. L J 108. In other words, if his argument is accepted, and it is held that section 149, P.P.C. Was not applicable as the intention to form an unlawful assembly for committing the murder of the deceased could not be established, then the position would be this: Ilahi and Jalla appellants are stated to have caused fatal injuries on the head of the deceased which eventually led to his death.
Therefore, only Ilahi and Jalla appellants should be convicted under section 302/34, P.P.C. For the murder of the deceased and since the affair was not a premeditated one, each of them be sentenced to life imprisonment plus fine of Rs, 5,000 or in default to undergo three months' rigorous imprisonment with the direction that if the fine was realized from them, it should be paid as compensation to the legal heirs of the deceased. So far as Yara appellant is concerned, he should be convicted only under section 325/34, P.P.C. For having caused grievous injury on the forearm of the deceased. Ismail appellant is stated to have caused an injury on the shoulder of the deceased which was also grievous. Therefore, Ismail appellant should also be convicted under section 325/34, P.P.C. Yara and Ismail appellants are stated to have caused simple injuries to Karam All P.W. And, therefore, they also could be convicted under section 323/34, P.P.C. For having caused simple injuries to Karam Ali P.W. And sentenced accordingly. So far as Zaman and Yusuf appellants are concerned, they are stated to have caused simple injuries, one each, only to Karam Ali P.W. And they did not cause any injury to the deceased in the instant case. They therefore, i,e, Zaman and Yusuf appellants be convicted under sectior 323/34, P.P.C. In the same way, Jalla appellant is stated to have caused simple injury to Muhammad Nawaz (not produced) and he could be convicted under section 323, P.P.C. I have carefully considered the argument of learned counsel which is being supported by the relevant authorities and I accept the same. The result is that the convictions as well as sentences awarded to the appellants are hereby altered as follows: Ilahi and Jalla appellants are convicted under section 302/34, P.P.C. And each of them is sentenced to imprisonment for life plus fine of Rs, 5,000 or in default to undergo three months' rigorous imprisonment with the direction that if the fine was realized from them, it should be paid as compensation to the legal heirs of the deceased. Jalla appellant is further convicted under section 323, P.P.C. And sentenced to one year rigorous imprisonment. The sentences of imprisonment in his case shall run concurrently. Yara and Ismail appellants are convicted under section 325/34. P.P.C.
And each of them is sentenced to five years' rigorous imprisonment plus fine of Rs, 1,000 each or in default to undergo one month rigours imprisonment with the direction that if the fine is realized from them, it should be paid as compensation to the legal heirs of the deceased. Both of them are also convicted under section 324/34, P.P.C. And sentenced to one year rigorous imprisonment each. The sentences of imprisonment in their case shall run concurrently. Zaman and Yusuf appellants are convicted only under section 323/34, P.P.C. And each of them is sentenced to one year rigorous imprisonment. Zaman and Yusuf appellants have already undergone their sentences. They should, therefore, be released from jail forthwith if not wanted in any other case. So far as rest of the appellants are concerned, namely, Ilahi, Jalla, Yara and Ismail, they should be granted the benefit of the provisions of section 382-B, Cr. P.C. By the jail authorities while computing their sentence of imprisonment. The appeal of the appellants is accepted to the above extent.
' In the light of what has been discussed above, I do not find any substance in Chemical Revision No, 437 of 1981, which is accordingly dismissed in limine.