1. ' Six persons, namely, Abdul Salem, Bashir Ahmad, Mushtaq Ahmed, Khalid Mahmood, Maqsood Ahmad and Muhammad Iqbal, all Gujjar, residents of Chak 475/G.B., Tehsil Samundri, District Faisalabad, were hauled up for a clash which took place between them and Fateh Muhammad and others, on 24-12-1979. The aforesaid persons were initially challaned under section 307/326/148/149; P.P.C. But as later on Muhammad Afzal died, capital charge was added. All of them were tried by the Additional Sessions Judge, Faisalabad.
2. ' The trial Judge, by judgment, dated 3-2-1982, acquitted Muhammad lqbal. The rest were convicted under section 302/307/148 read with 149, P.P.C. They were sentenced to imprisonment for life and a fine of Rs,10,000 each; or, in default two years R.I. This was under section 302/149, P.P C. For attempt to murder they were sentenced to five years R.I. Each and a fine of Rs,5,000 each; or, in default one year's R.I. Each. Under section 148, P.P.C. They were sentenced to two year's R.I. Each.
3. ' The convicts have appealed to this Court and Faqir Muhammad (complainant's son) and the State have filed separate Revisions for enhancement of the sentence of the convicts from life imprisonment to death. All these matters shall be decided by this judgment.
4. ' Report Exh.P.W.5/1 was lodged by Fateh Muhammad in Civil Hospital Samundri. It was recorded by Abdur Rehman, Sub-Inspector, who reached there on receiving information (Exh. P.W. 2/1) from the doctor. On the basis of Exh. P.W. 5/1, formal F.I.R (Exh. P.W. 5/2) was recorded at Police Station, Samundri: Fateh Muhammad died before the trial commenced.
5. Admittedly, the parties were hostile to each other. Motive for the incident was two-fold; one remote and the other immediate. The remote was the B.D. Election rivalry.
6. ' Abdur Rashid deposed about the remote motive. He was known to lqbal and Abbas. They were his share-holders while he used to collect toll tax as contractor for Municipal Committee Samundri. On the day of occurrence he was standing along with lftikhar near Ittefaq Hotel, Gojra Road, Samundri.
7. He was waiting for a bus. Lqbal accused turned up. He was on a motor cycle. He told Rashid to convey to Abdul Abbas that he would take revenge from him for the insult in connection with B.D.
8. Election as well as election of the Chairman. Rashid was further told to tell Abbas that he himself would settle with him and that Abbas would remember all his life. On the same day Abdul Rashid came to know about the occurrence.
9. ' Rana Zafar Ali Khan, Food Inspector, Sillanwali gave evidence with regard to the immediate motive. In 1979 he was posted in Samundri as Rationing Inspector. Abdul Abbas was a depot holder at Chak 475/G.B.
10. ' On 29-5-1979, Rationing Controller Faisalabad marked him for enquiry an application (Exh. P.W.
11. 9/1) filed by Abdul Salam accused and signed by otheRs, The witness recorded the statements of Abdul Salam, Mushtaq, Fateh Muhammad, Abdul Abbas and otheRs, He submitted his report (Exh.
12. P.W. 9/2) on the same day. On 12-9-1979 he received order from the Rationing Controller, Faisalabad. He again held an enquiry and submitted report on 23-10-1979. The complaints were against Abdul Abbas. Accused party was the complainant. The depot was suspended. On 22-12- 1979 Rana Shah Nawaz, Assistant Food Controller visited Samundri. He was to hold enquiry on the complaint of the accused. The accused as well as the complainant party appeared before the Assistant Food Controller. December, 24, 1979 was fixed as the date of enquiry by the Assistant Food Controller at Chak No, 475/G.B. The date was fixed on the asking of the party who made complaint.
13. ' On the said date the Assistant Food Controller and the Food Inspector came to Chak No, 475/G.B.
14. They went to the Baithak of Ch. Jan Muhammad. An announcement was made on the loud speaker calling the parties to attend. Both the parties came to the Baithak of Jan Muhammad and requested the Enquiry Officer to hold the enquiry in the school premises. The venue was shifted to school premises. Enquiry commenced by recording the statement of maker of the complaint.
15. ' When his statement concluded, the Enquiry Officer started to record the statement of the other side (Abdul Abbas). When the statement of Abdul Abbas was being recorded, Salam, Mushtaq and others started interfering. The parties grappled with each other. The Assistant Food Controller and the witness left the school premises; went to the Village and then to Samundri. This happened at about 3 or 4 p.m. On the same evening the witness came to know about the occurrence.
16. ' Abdul Abbas was an eye-witness. He was injured. He had a depot in Chak 475/G.B. In 1976, Abdul Salam got an Ahata in the Chak. This belonged to the Union Council. The allotment was in the name of Abdul Salam and his relatives. It had been made by A.C. Samundri. The witness got it cancelled. After that Mushtaq, Bashir and Salam started giving applications against him to the Food Grain Authorities, Deputy Commissioner, Martial Law Authorities and the Advisor for Health.
17. The request was for cancellation of the depot from his name. Enquiries were held and on one occasion security of Rs,200 was forfeited.
18. ' On 25-9-1979, B.D. Election took place. The contest was between Abdul Abbas and Yaqub maternal-uncle of Iqbal accused; father of Maqsood accused; uncle of Khalid and Khaloo of Mushtaq accused. The parties quarreled during the election. The supporters of Abdul Abbas insulted Iqbal accused.
19. ' On 20-12-1979, election for the Chairmanship of Union Council was held at Samundri. Anwar Kamal contested. He belonged to the party of Abdul Abbas. His opponent was Talib Hussain Gujjar. His supporters were Iqbal and his party. Barkat Masih was one of the voters, Abdul Abbas wanted him to vote for Anwar Kamal whereas the other party wanted his vote for Talib Hussain. This led to a quarrel between Abdul Abbas and Iqbal. Iqbal was insulted. He felt offended. The witness then deposed about the enquiry held by the Assistant Food Controller at the instance of Abdul Salam, Mushtaq and Bashir against him. He then deposed about the enquiry proceedings regarding which reference has already been made.
20. ' On 24-12-1979 the time was between Asar and Zohar when Rana Shah Nawaz A.F.C. And Rana Zafar, Food Inspector came to their village. Enquiry started in the Government Primary School. The accused party except Iqbal was present. Fateh Muhammad complainant, his son Afzal brother Abdul Abbas and his nephew Aslam and others were also present. Statements of Abdul Salam and his witnesses were recorded. Thereafter, the A.F.C. Started recording the statement of Abdul Abbas.
21. While his statement was being recorded, Mushtaq and Bashir started abusing him. They said that he was making a false statement. This led to a dispute. The A.F.C., the Inspector and many others took to their heels.
22. ' Mushtaq, Abdul Salam, Bashir and Maqsood had knives and Khalid a Lathi. They attacked Muhammad Afzal, Muhammad Aslam and Abdul Abbas. Salam gave a knife blow. Afzal was hit in the left flank towards back. Then Maqsood gave a knife blow to Muhammad Aslam. He too was hit in the left flank. Both fell down. Mushtaq gave a knife blow on the right side of Abdul Abbas's head.
23. Then Bashir and Salam gave knife blows in the abdomen of Abbas. Khalid Mahmood inflicted a Lathi blow on the head of Abdul Abbas. He fell down.
24. ' The occurrence was seen by Niaz Din, Muhammad Sawar and Fateh Muhammad who placed the injured on cots and removed them to the hospital. Abdul Abbas became unconscious. He regained consciousness four five days afterwards and found himself in the District Headquarters Hospital, Faisalabad.
25. ' The next eye-witness is Muhammad Aslam. Abdul Abbas is his maternal-uncle. He is also injured.
26. ' Muhammad Aslam first deposed about the hostile relations between the parties. His statement is almost the same as that of Abdul Abbas.
27. ' About the actual attack his evidence is that Abdul Salam, Maqsood Ahmad, Mushtaq and Bashir were armed with knives. Khalid had a Dang. The accused attacked Muhammad Afzal, Abdul Abbas and the witness. The part attributed by this witness to the accused is the same as deposed by Abdul Abbas, his maternal-uncle.
28. 'Niaz Din, Cultivator, resident of Chak 475/G.B. First deposed about the enquiry on the complaints against Abdul Abbas depot-holder. About the actual incident he said that when the dispute started the officials of the Food Department and other persons ran away. Thereafter, Salam gave a knife blow to Muhammad Afzal on his left flank towards back. Maqsood inflicted a knife blow to Muhammad Aslam. His left flank was injured. Both Afzal and Aslam fell down. Then Mushtaq gave a knife blow to Abdul Abbas on the right side of his head. Bashir and Abdul Salam also gave him knife blows in his abdomen. Khalid gave a Lathi blow on the head of Abdul Abbas. He too fell down. The accused fled away. The injured were taken to the hospital.
29. ' On 24-12-1979 at 6-15 p.m., Dr. Ghulam Rasool examined Muhammad Afzal. He had a stab wound 2 c.m. x 1 c.m. x 8 c.m. Upon back and outer side of left half of chest lower portion. His 11th rib was cut. He was in serious condition and was semi-conscious.
30. ' On 30-12-1979 at 2 a.m., Muhammad Afzal died. On the same day Dr. Major Muhammad Yousaf All conducted his post-mortem examination. He found a laparotomy 18 c.m. Long with 13 stitches in the left lumbar region and a stab wound 2 c.m. x 1 c.m. Into the abdominal cavity deep lower part of the back and lateral part of left chest. The 11th left rib was cut by this injury. Peritoneum and left kidney were also cut. The pancreas and the renal vain were injured. In the opinion of the doctor the deceased died due to shock and hemorrhage as a result of injury No, 2 (stab wound) which was sufficient to cause death in the ordinary course of nature.
31. ' On 24-12-1979 at 6-30 p.m. Dr. Ghulam Rasul, Medical Officer, Civil Hospital, Samundri examined Abdul Abbas. He found the following injuries on his person:-
(1) Stab wound 3 c.m. x 1 c.m. x chest cavity deep upon left costal margin 7 c.m. From midline.
(2) Stab wound 3 c.m. x 1 c.m. x 7 c.m. Upon outer side of right half of chest lower portion 19 cm from midline.
(3) An incised wound 1 c.m. x 1/4 c.m, x skin deep upon right side of forehead upper most portion.
4. A contused wound 3/4 c.m. x 1/2 c.m. x skin deep upon left mastoid region.
32. ' Injury No, 4 was inflicted with blunt weapon while the rest with sharp-edged weapon. Injuries Nos.
33. 3 and 4 were simple. Injuries 1 and 2 were kept under observation. The injured was semi-conscious.
34. Later on, injury No, 2 was declared grievous.
35. ' On the same day at 7 p.m. The doctor examined Muhammad Aslam. He had a stab wound 3 c.m. x 1 c.m. x 10 c.m. Upon left loin 11 c.m. From left costal margin. The weapon used was sharp edged. The injury was kept under observation. The injured was in a serious condition. He was in the state of shock and was semi-conscious.
36. ' The appellants admitted their relationship inter se as well as with the acquitted accused Iqbal.
37. They denied the allegations. Pleaded not guilty. They said that they had been roped in due to enmity. They examined seven witnesses in defence.
38. ' Abdul Waseh D.S.P. (D.W.1) was entrusted the investigation of this case. Some officers of the Crimes Branch had also partly investigated this case. This officer summoned the parties but himself did not go to the spot. He found Iqbal innocent. He said that he did not remember whether the accused side offered to give special oath and the complainant party refused regarding the remaining accused. After perusing the Zimnis he did not find any such offer by the accused party.
39. His final report was approved by the I.-G. Police. Then the investigation was entrusted to Sultan Ahmad. He said that he never asked the S.H.O. To get the case cancelled.
40. ' Muhammad Sharif F.C. P.S. Samundri (D.W.2) produced F.I.R. Register bearing F.I.R. No, 64/79, dated 25-3-1979, a certified copy of which is Exh. D.W. 2/A.
41. ' Muhammad Zafarullah Khan, Record Keeper (D.W.3) produced bed head ticket of Muhammad Aslam son of Bashir Ahmad.
42. ' In January, 1980, Taj Muhammad Khan A.S.P. (D.W.4) was entrusted the investigation of this case on the joint request of both the parties. He summoned both the parties. Accused's version was that there was only one accused armed with a knife and another with a belt. In support of this version they offered special oath but the complainant party refused to accept the offer saying that it was not a theft case. He found Iqbal innocent and recommended him to be discharged.
43. ' Hamidullah (D.W.5) stated that the application made by the residents of Chak 475/G.B. On which enquiry was held against the Food Inspector and Abdul Salam was not traceable but the orders passed by the Rationing Controller with regard to the enquiry were on the file. The orders are Exh.
44. D.W. 5/1.
45. ' Doctor A.A. Khalid (D.W. 6) stated that the bed head ticket of every indoor patient is maintained by the Medical Officer incharge of the Ward. He said that bed head ticket of Muhammad Aslam (Exh.
46. D.W. 6/A) and discharge slip (Exh. DW 6/B) bore his signatures. He said that the latter did not correspond with the former because Muhammad Aslam was transferred from Male Surgical (1) to a private ward of D.H.Q. Hospital on 27-12-1979 and the discharge slip did not contain this entry. He admitted that the slip had been issued by mistake because he reposed confidence in the Record Keeper and signed the documents in routine. He further said that a note was given by the doctor incharge on the bed head ticket whenever a patient was discharged from the hospital and that very doctor signed all the pages of the bed head ticket. He admitted that the bed head ticket of Muhammad Aslam did not bear the signature of any doctor who discharged Aslam.
47. ' Muhammad Ashraf (D.W.7) proved the application Exh. D.W./A filed in the Court of A.C. Samundri and photo stat of Robkar issued by the P.D.S.P. (Exh. P.G.) and Exh. P.H. The application made by Sanaullah S.H.O. Police Station Samundri on 6-12-1980.
48. ' Learned counsel for the appellant blamed the complainant side for starting the trouble. He submitted that the parties were inimical towards each other. He submitted that though two of the eye-witnesses were injured but that did not mean that their testimony must be accepted.
49. ' Learned counsel contended that the ocular version was of interested witnesses. There was no corroborative evidence forthcoming from any independent source. He submitted that the prosecution failed to prove its case beyond doubt.
50. ' I have also heard learned counsel for the State as well as counsel for the complainant. Both of them prayed for enhancement of the appellants sentence from life to death.
51. After hearing arguments of the learned counsel for the parties and going through the evidence, I am convinced that this is not a fit case for acquittal. The presence of Abdul Abbas and Muhammad Aslam cannot be doubted. Both of them were injured. Niaz Din is an independent eye- witness. His evidence lends support to what Abdul Abbas and Muhammad Aslam deposed. The medical evidence further supports the ocular version that sharp edged and blunt weapons were used. I am, therefore, clear in my mind that it was the accused party who attacked the other side.
52. ' Next question to be determined is whether it is a case of joint liability or individual.
53. Abdul Salem was attributed the fatal blow to Muhammad Afzal deceased. The injury was in the chest. He was also accused of inflicting a knife blow to Abdul Abbas. In this connection it would be important to note that none of the other accused gave any injury to the deceased. It is, therefore, not a case of joint liability. On the other hand, each one of the accused is individually liable for his act.
54. ' Mushtaq, Bashir and Maqsood were alleged to be armed with knives and Khalid Mahmood with Dang. According to the prosecution, they inflicted injuries to Abdul Abbas and Muhammad Aslam.
55. However, it is not proved as to who was attributed the grievous injury on the person of Abdul Abbas.
56. With the exception of this injury all were found simple. Muhammad Aslam had a sharp edged injury on left loin 11 c.m. From left costal margin. The nature of his injury is not given in the medical evidence. Therefore, it cannot be presumed to be grievous.
57. ' For the foregoing reasons, I am of the view that Abdul Salam conviction and sentence under section 302 P.P.C. Must be upheld.
58. ' However, his conviction under section 307, P.P.C. Is altered to one under section 324, P.P.C. And the sentence reduced to three years R.I. With a fine of Rs,5,000. Both the sentences shall run concurrently. His conviction and sentence under section 148, P.P.C. Is set aside. With this modification his appeal is dismissed.
59. ' The fine of Rs,10,000 will be paid as compensation to the legal heirs of the deceased and that of Rs,5,000 shall be paid to Abdul Abbas as compensation.
60. ' Abdul Salam is, however, given the benefit under section 382-B, Cr.P.C. The period of his detention shall be deducted from the term of his sentence.
61. Since Bashir Ahmad, Mushtaq, Khalid Mahmood and Maqsood Ahmad appellants injured only the witnesses and the injuries attributed t them were simple, their conviction under sections 302/307 and 148, P.P.C. Is set aside. They are convicted under section 324, P.P.C. And sentenced to three years R.I. Each. Their sentence of fine o Rs,5,000 each is upheld.
62. ' These appellants were admitted to bail on 5-5-1982, and since then they are on bail. I, therefore, don't think that it will now be fair to send them back to jail. The sentence already undergone by them would meet the ends of justice. The total amount of fine which comes to Rs,20,000 shall be given in equal shares to Abdul Abbas and Muhammad Aslam as compensation. With this modification their appeal is disposed of. Their bail bonds shall stand cancelled.
63. ' The Collector concerned is directed to take immediate steps for realization of the amount of fine and its payment as observed above.
64. ' The revisions filed by the State as well as the complainant's son have no merit. These are dismissed in limine.