' MUHAMMAD MUNIR KHAN, J.-- This Criminal Appeal No, 59/ 82-BWP and the connected Murder Reference No,13/82-BWP, arise from the judgment of learned Sessions Judge, Bahawalnagar, whereby he on 26-8-1982 convicted Ahmad Ali aged 29 years, Shakamand Ali aged 24 years, Noor Muhammad aged 23 years, Muhammad All aged 26 years, the four real brothers and Allah Yar aged 30 years of their brotherhood and sentenced them as under:-
(1) Ahmad Ali and Shakamand Ali-- Under section 302, P.P.C. For causing death of Bashir Ahmad, sentenced Ahmad Ali to death and a fine of Rs,2,000 or in default thereof 6 months' R.I. Shakamand Ali to imprisonment for life and a fine of Rs,1,000 or in default thereof 3 months' R.I.
(2) Noor Muhammad, Muhammad All and Allah Yar appellants-- Under section 325, P.P.C. For causing grievous injuries to the deceased as well as Allah Ditta P.W. 11 and sentenced them to 5 years' R.I. Each. ' with the direction that the sentences awarded to the appellants other than Ahmad Ali shall run concurrently. It was also directed that the fine when recovered be paid to the heir of the deceased.
2. The occurrence took place on 20-8-1981 at 6/6.30 a.m. Near Primary School of Chak No, 39/3-R within the limits of P.S. Haroonabad. The distance between place of occurrence and the police station is 18 K.M. The F.I.R. Exh.P.W.12/1 was lodged by Dilbar Hussain P.W.12, the brother of the deceased and was recorded by Zia Feroze S.I., P.W.14.
3. The motive as alleged by the prosecution was that 10 months before the occurrence Bashir Ahmad deceased abducted Mst. Kubra wife of Ahmad All appellant. She was returned through 'Panchayat' which effected a compromise in the terms whereof Bashir Ahmad left the village and shifted to Leiah.
4. As for the main occurrence, it has been stated that two days before the occurrence Bashir Ahmad alongwith Allah Ditta P.W.11 came back to the village Chak No,39/4-R, Haroonabad to take back his luggage. On the fateful day when he was going back alongwith Allah Ditta P.W. 11 and reached in front of Primary School near the house of Mistri Muhammad Sharif, the appellant Ahmad All armed with hatchet and his co-accursed namely Shakamand Ali, Noor Muhammad, Muhammad Ali and Allah Yar armed with 'Lathies' emerged from the house of Allah Yar appellant.
Ahmad All appellant abused Bashir Ahmad deceased telling that they would teach him a lesson for abducting his wife. The appellants then launched attack and belaboured Bashir Ahmad as a result of which he fell to the ground. When Allah Ditta P.W 1 and Dilbar Hussain P.W.12 intervened to rescue him, the appellants started causing injuries to them. On their alarm Khadim Hussain (not produced) and Sharif alias Khurshid P.W. 13 named as Murad Sharif in the F.I.R. Came there. On seeing them the appellants ran away. Bashir Ahmad in injured condition was removed on a cot towards Haroonabad but he succumbed to the injuries on the way.
5. On 20-8-1981 Dr. Manzoor-ul-Haq P.W.12 conducted post-mortem examination on the dead body of Bashir Ahmad and found following injuries on his person.--
(1) One L shaped incised wound 17 c.m. x 3 c.m. x brain deep on middle of scalp 4 c.m. Above right ear. Brain matter was coming out.
(2) An incised wound 12 c.m. x 2 c.m. x brain deep on the right side of the scalp 31 c.m. Above right ear.
(3) An incised wound 31/2 c.m. x 1 c.m. x skin deep on right side of the scalp 6 c.m. Above and in front of the right ear.
(4) One lacerated wound 3 c.m. x 1 c.m. x scalp deep on the scalp 61 c.m. Above left ear.
(5) One incised wound 4 c.m. x 1/2c.m. On the left side of the scalp 4 c.m. Behind injury No,4.
(6) A lacerated wound 2 c.m. x # c.m. x scalp deep on the left side of scalp 1 c.m. Behind injury No,4.
(7) An incised wound 8 c.m. x 13 c.m. x left ear chopped off.
(8) An incised wound 6 c.m. x 11/2 c.m. x skin deep on the left side of the neck 21/2 c.m. Below injury No,7.
(9) An incised wound 2 c.m. x # c.m. x skin deep over left cheek 3 c.m. Below lower eye lid.
(10) An incised wound 1 c.m. x 4 c.m. x lip deep on left side of upper lip 1 c.m. Medial to angle of mouth.
(11) Swelling 10 c.m. x all around right forearm in its middle with abrasion mark 2 c.m. x 1 c.m. x superficial skin deep over centre of swelling.
(12) Abrasion 2 c.m. x 1/2c.m. x superficial skin deep on the back of right elbow joint.
(13) Contusion 5 c.m. x 2 c.m. On outer aspect of right upper arm in its middle.
(14) Contusion 6 c.m. x 2 c.m. On back of right shoulder joint 2 c.m. Below tip of shoulder.
(15) Two abrasions 2 c.m. x 1 c.m. x 1 c.m. And superficial skin deep on back of right shoulder joint 1 c.m. Below the tip of shoulder.
(16) An incised wound 7 c.m. x 1/3 c.m. x skin deep on back of chest .3 c.m. Medial to inferior angle of shoulder blade.
(17) A contusion 6 c.m. x 4 c.m. Over back of left chest 6 c.m. Below tip of shoulder.
' In his opinion, the death was result of severe haemorrhage and shock resulting from injuries Nos. 1, 2, 7 & 11 which were sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 & 2 were individually sufficient to cause death in the course of events. Injuries Nos. 1, 2, 3, 5, 7 to 10 and 16 were caused by sharp-edged weapon while remaining by blunt weapon. The time between death and the injuries was within half and hour. The time between death and post-mortem was within 12 hours.
(ii) On the same day, the same doctor examined Allah Ditta P.W. And found the following injuries on his person.
(1) One lacerated wound 5 c.m. x 1 c.m. On right side of scalp 9 c.m. Above right ear.
(2) Lacerated wound 2 c.m. x 1 c.m. x scalp deep on back of scalp 8 c.m. Above and behind left ear.
(3) Swelling 6 c.m. x 4 c.m. x 4 c.m. On back of left hand and fingers.
(4) Reddish contusion mark 2 c.m. x c.m. On back of left forearm 3 c.m. Below joint.
' All the injuries were caused by blunt weapon within 12 hours. Injury No, 3 was grievous whereas others were simple.
(iii) On the same day he examined Dilbar Hussain P.W. 12 and found one simple injury caused with blunt weapon on his person. The injury was caused with blunt weapon within 12 hours.
(iv) On 21-8-1981, the doctor examined Shakamand Ali appellants and found following injuries:-
(1) A lacerated wound 3 c.m. x # c.m. x skin deep on the scalp 10 c.m. Above right ear.
(2) Reddish, blue contusion mark 3 c.m. x 2 c.m. Over right shoulder joint 3 c.m. Medial to the tip of shoulder.
(v) On the same day, he also examined Ahmad Ali and found following injuries on his person:-
(1) A lacerated wound 2 c.m. x 1 c.m. x skin deep on the scalp 12 c.m. Above right ear.
(2) A lacerated wound 2 c.m. x 1 c.m. x skin deep on the scalp 10 c.m. Above left ear.
(3) Reddish, blue contusion mark 4 c.m. x 2 c.m. On top and back of right shoulder joint 2 c.m. Below tip of shoulder.
' The injuries on both the appellants were caused by blunt weapon and were simple and within 30 hours.
6. The appellants were arrested by Zia Feroze S.I., P.W. 14 on 20-8-1981. He got removed blood- stained shirt Exh.P.9, Shalwar Exh.P.10 of Ahmad Ali, blood-stained shirt Exh.P.11 and Chadar Exh.P.12 Shakamand All blood-stained shirt Exh.P.15 and Chadar Exh.P.16 of Noor Muhammad, blood-stained shirt Exh.P.13 and Chadar Exh.P.14 of Muhammad Ali and blood-stained shirt Exh.P.17 and Chadar Exh.P.18 of Allah Yar appellants vide memoranda Exh.P.W.9/4 to P.W.9/8, respectively. On 30-8-1981 Ahmad Ali, Shakamand Ali, Noor Muhammad, Muhammad All and Allah Yar appellant got recovered blood-stained hatchet Exh.P.3, blood-stained Dang Exh.P.4 and Sotas Exhs.P.5 to P.7 vide memoranda Exhs.P.W.6/1 to P.W.6/5, respectively attested by Muhammad Ibrahim P.W.6 and Abdul Khaliq P.W.7. The recoveries were effected by Muhammad Yaqoob A .S.I. , P.W.10.
7. To prove its case prosecution examined 14 witnesses. P.W.1 Dr. Manzoor-ul-Haq conducted post- mortem examination on the dead-body of Bashir Ahmad and had examined the injured witnesses and the injured appellants. He proved the post-mortem report of Bashir Ahmad deceased and medico legal reports pertaining to Allah Ditta and Dilbar Hussain P.Ws., Ahmad All and Shakamand All appellants. Allah Ditta P.W.11, Dilbar Hussain P.W. 12 and Sharif alias Khurshid P.W.13 gave the ocular account of the occurrence. They supported the motive and occurrence as detailed in paras.
Nos. 3 & 4 of the judgment. They claimed to have seen the appellants armed with hatchet and Dangs causing injuries resulting in the death of Bashir Ahmad. Allah Ditta and Dilbar Hussain P.Ws.
Stated that the appellants had also caused injuries to them. Allah Ditta P.W. 11 and Zia Feroze S.I., P.W.14 have proved the removal of blood-stained clothes of the appellants. Muhammad Ibrahim P.W.6, Abdul Khaliq P.W. 7 and Muhammad Yaqoob A.S.I. P.W.10 have proved the recoveries of blood-stained hatchet and Dangs from the appellants. The Serologist Report Exh.P.B reveals that the bloodstained clothes removed from the persons of the appellants and the blood-stained weapons recovered from them were stained with human blood. The rest of the evidence is more or less of formal nature.
8. When examined under section 342, Cr.P.C., Noor Muhammad, Muhammad Ali and Allah Yar appellants denied all the incriminating circumstances including their presence at the spot. Ahmad Ali and Shakamand AU raised the plea of grave and sudden provocation as well as of self-defence of their persons. In reply to Q.N.13, Ahmad Ali stated:- "I am innocent. On the day of occurrence, myself and brother Shakamand were coming from the flour grinding machine leaving wheat there with our donkeys. Shakamand had a Soti in his hand to control the donkeys. When we were near the shop of Mistri Sharif, we saw Bashir deceased Dilbar and Allah Ditta coming towards us. They all were having Soties with them. They blocked our way and on my protest Bashir deceased loudly said that previously he had abducted my wife and that we had got her murdered and now they had come to abduct his second one of my family saying this, he caused injuries to me with a Soti. Upon this I got provoked and lost myself-control. I picked up a hatchet from the shop of Mistri Sharif and caused him injuries blindly. Dilbar and Allah Ditta attacked Shakamand and caused injuries to him and he in self-defence caused them injuries."
' Shakamand All made similar statement. In defence no witness was produced.
9. The learned trial Court has believed the motive, ocular evidence and the recoveries of the clothes and the weapons of offence from the appellants and has disbelieved the plea raised by the two appellants.
10. The learned counsel for the appellants contended that the prosecution case was false; that the occurrence did not take place in the manner stated by the prosecution; that the eye-witnesses are not reliable; that the injuries found on the person of Ahmad All and Shakamand Ali appellants having not been explained in the F.I.R. No reliance could be placed on the prosecution case and its evidence and that there is a reasonable possiblity of the existence of grave and sudden provocation and the exercise of right of self-defence by Ahmad All and Shakamand All appellants.
' On the other hand, the learned counsel for the State supported the judgment ,a the trial Court. He stated that the eye-witnesses produced by the prosecution were quite dependable and that the plea of self-defence and provocation was totally false.
11. Since it is a case of two versions, we propose to discuss prosecution case first, in order to arrive at an independent finding as to the truth or falsity of its case and the credibility of the eye- witnesses because if we disbelieved the case of the prosecution or the eye-witnesses then statements of Ahmad Ali and Shakamand Ali, will have to be accepted in toto unless exculpatory parts of their statements are falsified by prosecution evidence or circumstance appearing in the case. In case we do not reject the prosecution case and exclude the ocular account then we will examine the two rival cases placing injuxta-position and will review the whole evidence and attending circumstance at the close to reach at a conclusion with regard to the truth or falsehood of the defence version and the reasonable possibility of its being true.
12. Starting with the prosecution case we find that it is a case of prompt F.I.R. The occurrence took place at 6/6-30 a.m. And the F.I.R. Was lodged at 9-30 a.m. On the same day at a distance of 18 Km. The names of the appellants, the weapons carried by them, the part played by them and the names of the witnesses are mentioned therein. There is nothing on record that the F.I.R. Exh.PW.12/1 was not a genuine document. The F.I.R. Thus being prompt and genuine may be used to corroborate the statement of its maker i,e, Dilbar Hussain P.W.12. The background of the murder has almost been admitted by Ahmad All appellant. He admitted that Bashir Ahmad had abducted his wife who was restored through a 'Panchayat' and condition was imposed on the deceased that he would leave the Chak, and would not come.
13. Examining the ocular account of the occurrence given by Allah Ditta P.W.11, Dilbar Hussain P.W.12 and Sharif alias Khurshid P.W.13, we find that they have given consistant statements. Although in the F.I.R., the injuries on the person of Ahmad All and Shakamand All were not disclosed yet when questioned about the injuries of Ahmad All and Shakamand appellants, the eye-witnesses did not hesitate to explair. And own the same. Muhammad Sharif P.W.13 is a quite independent witness. He has supported the statements of Allah Ditta and Dilbar Hussain in all material particulars. The statements of the witnesses do not suffer from material contradictions and major discrepancies. At trial stage, the eye-witnesses did not supress anything before the learned trial Court. We do not see any inherent infirmity in the statements of the eye-witnesses. By the fact of injuries on the person of Allah Ditta and Dilbar Hussain, their presence on the spot is very much established and the appellants have also admitted their presence. Their statement that Noor Muhammad, Muhammad All and Allah Yar had participated in the occurrence stands confirmed by the recoveries of blood-stained clothes and the weapons of offence from them. Zia Feroze S.1., P.W.14, Muhammad Ibrahim P.W.6. Abdul Khalid P.W.7 and Muhammad Yaqoob A.S.1, P.W.10 had no animous against the appellants. They have succesfully faced cross-examination. For all these reasons, we do not feel prepared to reject the prosecution case or exclude the evidence of three eye-witnesses.
14. This brings us to the case of the appellants. We find that the appellants have produced no evidence in support of their version, so-much-so Mistri Muhammad Sherif from whose shop Ahmad All allegedly had picked up the hatchet was not produced by them. The plea of grave and sudden provocation and that of self-defence is not spelt out from the prosecution case and its evidence. Therefore, it can safely be said that the plea raised by the two appellants has not satisfactorily been established. Since the appellants cannot be convicted on account of their failure to establish their version beyond reasonable doubts therefore, we proceed to examine whether there is yet a rasonable possibility that the plea of grave and sudden provocation and self-defence raised by the appellants might be true so as to cast a reasonable doubt upon the prosecution case. In this connection, we find that the plea raised by the appellants is not spelt out from the prosecution evidence and the circumstance appearing in the case. The plea, in the circumstances of the case, appears to be highly rediculous and false. Bashir Ahmad had abducted the wife of Ahamd Ali who was restored through a 'Panchayat' and in pursuance to the terms and conditions imposed by the Panchayat' Bashir Ahmad deceased had left the village and shifted to District Leiah. In the meantime, as stated by Ahmad Ali, the appellants had killed the wife of Ahmad All most probably on acount of her illicit relations with Bashir Ahmad deceased. In these circumstances, it runs counter to the natural probabilities that the deceased would have thrown the challenge that he had come to abduct the second one of the family of Ahmad All appellant.
The defence version is thus not reasonably true. The material question which, now, needs consideration is as to what offence have been committed by the appellants. Since both the parties are injured it can safely be inferred that on seeing Bashir Ahmad again in the village, the occurrence took place all of a sudden wherein Ahmad All caused fatal injuries to the deceased with his hatchet. Shakamand Ali and others gave injuries with Dangs to the deceased. They also gave injuries to Allah Ditta and Dilbar Hussain with their Dangs. The injuries on Dilbar Hussain were simple. Out of four injuries found on the person of Allah Ditta, one injury on left hand was found grievous but the Radiologist has not been produced, and as such, the same has to be treated as simple one. The appellants Ahmad Ali and Shakamand All also received 5 simple injuries caused with blunt weapon. The learned trial Court has not convicted Shakamand Ali appellant under section 302, P.P.C. Read with section 34, P.P.C. Since he had not caused fatal injuries, therefore, he could not have been convicted under section 302 P.P.C. without the aid of section 34, P.P.C. For all these reasons, we are of the opinion that Shakamand Ali, Noor Muhammad, Muhammad All and Allah Yar would be responsible for their individual acts of causing simple injuries to the deceased and Allah Ditta P.W. Punishable under section 323, P.P.C. Shakamand Ali is in jail since his conviction on 26-2-1984. Noorp Muhammad, Muhammad Ali and Allah Yar appellants remained in jail for about one year and 8 months. So the sentences already undergone by them, would meet the case.
As for the conviction of Ahmad Ali under section 302, P.P.C. No exception can be taken to the same.
On the question of sentence, we see extenuating circumstances in his favour or lesser penalty inasmuch as the deceased having abducted his wife, the murder was committed in vindication of family honour.
15. For what has been stated above, the appeal is partly accepted. Shakamand Ali shall be released forthwith, if not required in any other case. Noor Muhammad, Muhammad All and Allah Yar appellants who are Hi bail, are discharged of bail bonds and while maintaining the conviction A Ahmed All under section 302, P.P.C. For causing the death of Bashir Ahmad, the sentence of death awarded to him is altered to imprisonment for life. The fine of Rs,2,000 or in default thereof R.I. For 6 months is however maintained. The fine when recovered be paid to the legal heirs of deceased.
'The sentence of death is accordingly not confirmed.