' IJAZ NISAR, J.-- Chiragh (40), Nazir (50), Bashir (52) and Nawab (45) sons of Sagar and Sakhi son of Sohna (60) were tried along with Siddique son of Sohna (75) and Wazir son of Bahadur (60) for the murders of Riasat Ali (30-31) and Mst. Hajran (40-41) and for murderously assaulting Khushi Muhammad son of Boga, Khushi Muhammad son of Sikandar, Akbar and Liaquat Ali P.Ws. The learned Additional Sessions Judge, Sahiwal, by his judgment, dated 28-2-1983 convicted Chiragh, Nazir, Bashir, Nawab and Sakhi under section 302/149, P.P.C. And sentenced Chiragh to death on two counts for the murders of Riasat Ali and Mst. Hajran deceased and to pay a fine of Rs,5,000 on each count while the others were sentenced to imprisonment for life and a fine of Rs,2,000 on each count or in default to undergo further R.I. For one year. Chiragh and others were also convicted under section 148, P.P.C. And 307/149, P.P.C.And sentenced to one year's R.I. On each count. All the sentences were ordered to run concurrently. Half of the fine, if recovered was ordered to be paid to the legal heirs of the two deceased as compensation under section 544-A, Cr.P.C. In equal shares.
Siddique and Wazir were however, given the benefit of doubt and acquitted.
2. This order will dispose of the reference for the confirmation of death sentence of Chiragh, the appeal filed by Chiragh and others against their convictions and sentences and the criminal revision filed by All Muhammad complainant against the acquittal of Siddique and Nazir.
3. Chiragh, Bashir, Nazir and Nawab appellants are real brothers. Siddique (since acquitted) and Sakhi appellants are also real brothers. Wazir (since acquitted) son of Bahadur is a cousin of Chiragh etc. Siddique and Sakhi are also cousins of the other accused. Their grand-father was one.
4. The prosecution case is that Nazim All P.W.9, cousin of Riasat All deceased and Nazir appellant started a joint wheat business and earned a profit of Rs,20,000. Nazir appellant paid Rs,16,000 to Nazim Ali P.W. While Rs,4,000 were still to be paid by him. Nazim All repeatedly demanded the balance amount but Nazir appellant put off the matter on one pretext or the other. About 6/7 days prior to the occurrence Nazim Ali P.W abused Ashiq All a cousin of Nazir appellant on the said issue.
' On 20-8-1977 at Maghrab prayer time Muhammad Ramzan younger brother of Nazim Ali P.W. Was passing through the village Chowk when Nazir appellant held him in Japha. On the alarm of Ramzan his father Khushi Muhammad, his brother Liaquat Ali and cousin Akbar All and Mst. Hajran deceased came there. Khushi Muhammad son of Sikandar C.W.1, Muhammad Ishaq (given up)and Nazim Ali P.W. 9 also reached there. Nazir appellant ran away to his house. After a short while Bashir appellant and Siddique (since acquitted) armed with hatchets, Nazir and Nawab armed with Selas, Sakhi and Wazir (since acquitted) armed with Sotas arrived at the spot. Bashir appellant gave a hatchet blow to Riasat Ali deceased on his head. Sakhi appellant gave a Sota blow on the shoulder of Riasat All deceased. Siddique (since acquitted) gave a hatchet blow on the head of Khushi Muhammad, father of Nazim Ali P.W. Nawab and Nazir appellants gave a Sela blow to Akbar Ali P.W.
Bashir appellant gave a hatchet blow to Liaqat Ali P.W. On the head. Sakhi appellant gave a Sota blow to Liaquat Ali P.W. On his arms. In the meantime, Chiragh appellant came there armed with a gun raising Lalkaras and took position behind the outer door of Wazir appellant and fired from his gun hitting Mst. Hajran deceased in the head. She fell down and succumbed to the injuries instantaneously. He again fired hitting Riasat Ali deceased. He fired another shot hitting Khushi Muhammad son of Sikandar C.W. 1 on his right chest and arm. All the accused then ran away with their respective weapons. Riasat All deceased was carried to rural dispensary of Chak No, 168/9-L where he breathed his last. Ali Muhammad P.W.10 reported the matter at Police Station, Ghaziabad, the following morning at 6-10 a.m. The distance between the spot and the police station, being 7 miles.
5. After recording the F.I.R., S.I. Sakhawat Hussain P.W.12 left for the spot, prepared the injury statement Exh.P.Y. And inquest report Exh.P.Z. Of Mst. Hajran deceased. He then left for the dispensary where he prepared the injury statement Exh.P.AA and inquest report Exh.P.BB of Riasat All deceased. From there he proceeded to the spot and took into possession blood-stained earth from the place of murders of Mst. Hajran and Riasat All deceased. He also took into possession three crime empties through memo. Exh.P.CC. He arrested Nawab, Nazir, Siddique, Sakhi, Wazir and Chiragh accused on 23-8-1977 and Bashir accused on 25-8-1977.
' On 24-8-1977 Chiragh appellant while in custody led to the recovery of gun P.1 from his residential house which was taken into possession through memo. Exh.P.B. He also produced his licence Exh.P.2. Siddique (since acquitted) led to the recovery of blood-stained hatchet P.3 from his house.
Nawab appellant led to the recovery of blood-stained Sela P.5 from his house. Sakhi appellant led to the recovery of Sota P.6 from his house. Wazir (since acquitted) got recovered Sota P.7 from his house. Bashir appellant produced hatchet P.8. According to Sakhawat Ali S.I. The gun was sent to the Fire-Arm Expert for comparison and the result was positive.
6. On 22-8-1977, Dr. Muhammad Yahya conducted post-mortem examination on the dead body of Mst. Hajran deceased and found the following injuries:
(1) A contused wound 21/2" x 3/4" x 1" on the occipital region.
(2) A gunshot wound oval in shape about 1" in diameter on the supera aspect of the pinna of right ear. There was tattooing and scraching of the skin around wound. The edges were inverted.
(3) A gunshot wound 3/4" x 1/2" on the right side of forehead 11" above the right eye-brow. The edges of the wound were inverted. There was blackening of the skin around the wound as also tattooing of the skin.
' Death occurred due to the shock and haemorrhage as a result of injuries Nos. 2 and 3 which were individually sufficient to cause death. Injury No, 1 was simple caused with blunt weapon. Injuries Nos. 2 and 3 were caused by fire-arm. Probable time between injuries and death was immediate and that between death and post-mortem examination 36 hours.
' The same doctor also conducted the post-mortem examination on the dead body of Riasat All deceased and found the following injuries thereon:
(1) An incised wound 3" x 1" muscle deep on the right side of the head on the right parietal bone just lateral to mid line 4" above the bridge of nose
(2) An incised wound 1" x 1/2" x bone deep on the left side of head lateral to mid line.
(3) An abrasion 3/4" x 1/2" on the lateral side of left cheek 4" lateral to right nipple.
(4) A contused wound 4" x 1" on the lateral side of left upper arm 7" below the tip of the left shoulder joint.
(5) A gunshot wound oval in shape about 11/2" in diameter on the lateral aspect outer side of the right forearm 2" above the right wrist joint. The edges were inverted. There was scorching of the skin around the wound.
(6) A gunshot wound 3/4" in diameter on the outer side of the right abdomen joint above the ant: superailioc spine. The edges were inverted and there was scorching of the skin.
(7) A gun shot wound about 3/4" in diameter with inverted edges and scorching of the skin around the wound on the outer aspect of the right upper thigh 2" below the anterior superailioc spine.
(8) Two gun shot wounds on the right buttocks. The edges of the wounds were inverted with scorching of the skin.
(9) Two gun shot wounds about 1/2" in diameter on the antero lateral aspect of the right upper thigh.
' Death occurred due to shock and haemorrhage as a result of injuries Nos. 6 and 7 which were individually fatal. Rest of the injuries were simple in nature. Injury No,1 was caused by sharp-edged weapon. Injury No,2 was caused by a sharp pointed weapon while injuries Nos. 3 and 4 were caused by blunt weapon. Rest of the injuries were caused by fire-arms. Probable time that elapsed between death and post-mortem examination was 36 hours.
' The post-mortem reports were proved by Fayyaz Ahmed P.W.13 as Dr. Muhammad Yahya who conducted the post-mortem examination had died.
7. Dr. All Hassan P.W.4 examined Khushi Muhammad son of Sikandar C.W.1 (55) on 20-8-1977 and found the following injuries on his person:
(1) A gun shot wound 1/6" x 1/6" x depth could not be measured on the outer side of right upper arm about six inches below the right shoulder joint. Wound was stained with gun powder.
(2) A gun shot wound 1/6" x 1/6" x bone deep on the back of the right upper arm about five inches below the right shoulder joint. Margins of the wound were stained with gun powder.
(3) A gun shot wound 1/6" x 1". Depth could not be measured, on the right exilla. Margins of the wound were blackened.
(4) A gun shot wound 1/6" x 1". Depth could not be measured on the back of the right side of middle of chest about eight inches below the route of neck. Blood and gun powder were found on the margins of the wound.
' On the same day, he examined Akbar Ali P.W.8 (18) and found the following injures on his person:-
(1) A contused wound 12" x 1/2" x 1/4" on the left side of front of skull about four inches above the left ear.
(2) An incised wound 1/6" x 1/6" x 1/4" on the back of right hand about 1" below the right wrist joint.
(3) An incised wound 1/12" x 1/12" on the middle of upper lip
(4) A bruise of 3" x 2" on the middle of left side of face about 31" in front of left ear.
(5) A bruise 3" x 1" on the back of right forearm about 3" above the right wrist joint.
(6) A bruise 2" x 1" on the left forearm about 3" below the left elbow joint.
(7) A bruise 5" x 1" on the back of left chest about 4" below the left shoulder joint.
(8) A bruise 3" x 1" on the back of right leg 5" below the right knee joint.
(9) A bruise 2" x 1" on the front of left shoulder joint.
' All the injuries were simple. Injuries Nos. 2 and 3 were caused by sharp-edged weapon and rest by blunt weapon.
' He also examined Khushi Muhammad son of Boga (70) (given up P.W.) and found the following injuries on his person:
(1) An incised wound 11/4" x 1/2" x bone deep on the front of left side of scalp about 31" above the left eyebrow.
(2) An incised wound 1/12" x 1/12" x 1/10" on the back of left shoulder joint.
' The same doctor also examined Liaqat Ali (23) and found the following injuries on his person:
(1) An incised wound 3" x 1" x bone deep on the front of left side of scalp about 2" above the left eye.
(2) A bruise of 2" x 1" on the outer side of left elbow joint.
(3) A bruise of 2" x 1" on the left forearm about 2" above the left wrist joint.
(4) A bruise of 3" x 1" on the left leg about 2" above the left ankle joint,
(5) A bruise of 1" x 1" on the front of left side of chest about 1" below the left clavicle bone.
' All the injuries were simple. Injury No,1 was caused by sharp-edged wapon and the rest by blunt weapon.
' On 23-8-1977 he examined Wazir Muhammad (since acquitted) (40) and found the following injuries on his person:
(1) A bruise of 2" x 1" on the back of right hand 2" below the right wrist joint.
(2) A bruise of 1i" x 1" on the back of right wrist joint.
' Both these injuries were simple caused by blunt weapon within four days duration.
' On the same day he examined Siddique accused (since acquitted) (60) and found the following injuries on his person:
(1) A bruise of 1/12" x 1/12" on the back of root of ring finger of left hand.
(2) A bruise of 1/6" x 1/8" on the back of root of ring finger of left hand.
' Both the injuries were simple caused by blunt weapon within four days duration.
' He also examined Sakhi Muhammad appellant (50) and found the following injuries on his person:
(1) An incised wound of 1/6" x 1/12" x 1/12" on the front of left thumb of left hand about in below the tip.
(2) An abrasion of 1/6" x I" on the front of left big finger, of left hand about i" below the tip.
(3) An abrasion of I" x 4" on front of left thigh about 5" above the left knee joint.
(4) An abrasion of 1" x 1" on the back of left side of chest about 4" below the left shoulder joint.
' All the injuries were simple. Injury No, 1 was caused by sharp-edged weapon and the rest by blunt weapon within four days duration.
8. Sakhi appellant Siddique and Wazir (since acquitted) admitted the occurrence while the others denied it. Sakhi appellant stated that in fact he, Wazir and Siddique accused were attacked by Riasat Ali deceased, Khushi Muhammad son of Boga, Liaqat Ali and Akbar Ali P.Ws. And they had acted in their self-defence. Nazim Ali son of Khushi Muhammad brought a licensed gun of his father and fired with the same hitting Riasat All and Mst. Hajran deceased and Khushi Muhammad son of Sakindar C.W.1. According to him the complainant party was the aggressor. He stated that his co-accused Chiragh, Bashir, Nawab and Nazir were not present at the spot at the relevant time and had been falsely involved due to their relationship with them.
' Wazir and Siddique also made similar statements. The other co-accused denied the prosecution allegations and stated to have been falsely involved due to enmity.
' None of the accused called any evidence in defence.
9. The prosecution examined 13 P.Ws. To prove its case. Of them, Liaqat Ali P.W.7 (injured), Akbar All P.W.8 (injured), Nazim Ali P.W. 9 and An Muhammad P.W.10 furnished the ocular account. Ghulam Qadir P.W.2 testified to the recoveries from the accused. S.I. Sakhawat Hussain P.W.12 had recorded the F.I.R. Arrested the accused and effected recoveries from the spot and from them. Khushi Muhammad son of Boga (injured), Gul Sher, Ishaq and Amanat Ali who had also witnessed the occurrence were not examined by the prosecution. Khushi Muhammad son of Sikandar (injured) was examined by the Court as C.W.1.
10. Relying on the motive, the ocular testimony and the recoveries the trial Court convicted and sentenced the appellants as described above. Khushi Muhammad son of Sikandar C.W.1 was not considered to be a truthful witness and hence his evidence was discarded.
11. It is contended that there is a delay in the F.I.R., the eye-witnesses are closely related to one another and are interested against the appellants, their evidence is in conflict with the medical evidence and the recoveries do not stand proved through any independent evidence. The motive set up by the prosecution is also assailed and it is stated that it was the complainant party who had the grievance against the appellant and further that in the F.I.R. There is no explanation at all of the injuries suffered by Siddique, Sakhi and Wazir co-accused. It is further argued that the prosecution evidence is full of material contradictions and improvements.
' Challenging the acquittal of Wazir and Siddique accused it is argued by the learned counsel for the complainant that their participation in the occurrence stands established by the presence of injuries on their persons and the mere fact that they were old aged persons was not sufficient to absolve them from the crime particularly, when specific part had been attributed to them in the occurrence.
12. As far the delay in reporting the matter to the police, the occurrence took place on 20-8-1977 at Maghrab prayer time while the report was lodged at the police station on the next morning, at 6-10 a.m., the police station being seven miles away from the spot. The delay stands satisfactorily explained because according to the complainant Riasat All deceased and other injured persons were firstly taken to the rural dispensary. The complainant would have been certainly more concerned with saving the life of Riasat All deceased and providing medical aid to the injured persons than reporting the matter to the police. The delay is not of much significance because of the admission of the occurrence by some of the accused persons. As regards the conflict between the medical evidence and the ocular testimony the prosecution case is that fire-arms, sharp- edged and blunt weapons were used by the accused during the occurrence. The prosecution version stands corroborated by the medical evidence because injuries caused with all the three kinds of weapons were found on the persons of the deceased and the injured P.Ws. The locale of the injures tallies with the description given by the eye-wtinesses. The number of the injuries is also proportionate to the number of the accused.
13. As regards the motive, the prosecution case is that Nazir had done a joint business with Nazim Ali P.W. And owed Rs,4,000 to him which he was not paying despite repeated demands of Nazim All P.W.6/7 days prior to the occurrence Nazim Ali P.W. Again demanded the said amount from Nazir appellant but he refused to pay the same and on the contrary abused Nazim Ali P.W. Two or three days prior to the occurrence Amanat Ali, a brother of Nazim Ali gave beating to Ashiq Ali a relative of Nazir on the said matter which led to the present occurrence. The sequence of the above events would show that both the parties were equally aggrieved and were motivated against each other.
The contention that the eye-witnesses being related to one another should not be relied upon does not seem to be of much force. The presence of Liaqat Ali and Akbar Ali P.Ws. At the spot cannot be doubted because of the presence of injuries on their persons. The, duration of their injuries is exactly the same as that of the deceased persons. From the accused side Sakhi appellant, Siddique and Wazir had also suffered injuries. There is no explanation in the F.I.R. Of the injuries suffered by them. The duration of their injuries also tallies with that of the injuries of the deceased and the injured P.Ws. According to their statements under section 342, Cr.P.C. They were attacked by Riasat Ali deceased, Khushi Muhammad son of Boga, Liaqat Ali and Akbar Ali, P.Ws. And they acted in self-defence. According to them, Nazim Ali, P.W. Brought the licensed gun of his father and fired from it as a result of which Riasat Ali deceased, Mst. Hajran deceased and Khushi Muhammad son of Sikandar C.W.1 were incidentally hit. The accused are completely silent as to the genesis of the occurrence. They have not stated for what reasons the complainant party had attacked them.
The prosecution has also not given any explanation about the injuries suffered by Wazir, Sakhi and Siddique appellants. From these circumstances, it appears that both side have not come forward with the true story and have suppressed material facts and have tried to minimise their own part in the occurrence. In such a situation, the Court has to form its own conclusion about the origin of the occurrence. Khushi Muhammad son of Sikandar, C.W.1 has also not come forward with the true story. He was initially cited as prosecution witness and when summoned on two occasions did not appear. He was eventually given up by the prosecution as having been won over and when at the fag end of the trial was summoned as a Court witness, he supported the defence plea which is not true and appears to be an after thought. In all probability, it appears that since there was a bad blood between the parties over the non-payment of Rs,4,000 by Nazir appellant to Nazim Ali, P.W.
They picked up a quarrel on coming across with each other in the village Chowk resulting in a sudden fight in the course of which Chiragh appellant brought a gun and fired at the two deceased persons. Since there was no premeditation and the occurrence was the result of a sudden fight each accused/appellant would be individually liable for his act. Nazir, Bashir, Nawab and Sakhi appellants who were engaged in the fight with the complainant party might not be even aware of Chiragh coming armed with a gun and firing from it. Therefore, they cannot be held responsible for the act of Chiragh. In consequence, their conviction under section 302/149, P.P.C.
Was not justified. They can be only held responsible for their own part. According to the prosecution Sakhi and Nazir appellants had caused simple injuries to Riasat All deceased, Akbar Ali and Liaquat Ali, P.Ws. They are accordingly, convicted under section 323, P.P.C. And sentenced to the period of imprisonment already undergone by them and a fine of Rs,1,000 each or in default to undergo six months' R.I. Bashir and Nawab appellants are attributed simple sharp-edged weapon injuries to Riasat Ali deceased and Akbar Ali, P.Ws. Respectively. They are accordingly convicted under section 324, P.P.C. And sentenced to the period of imprisonment already undergone by them and a fine of Rs,1,000 each or in default to undergo six months' R.I. They are allowed two months' time from today to deposit the amount failing which they shall undergo the above mentioned sentence of imprisonment. As the fatal injuries of Riasat All and Mst. Hajran deceased are attributed to Chiragh appellant alone he is, therefore, convicted under section 302, P.P.C. And sentenced to death and a fine of Rs,5,000.
The conviction of Chiragh and other appellants under sections 148 and 302/149, P.P.C. And section 307/149, P.P.C. As ordered by the trial Court is set aside.
' The appeal and murder reference are disposed of in the above terms.
' Wazir and Siddique (acquitted accused) are aged 60 and 75 years respectively. Being too old they could not be expected to cause injuries to any body. They were, therefore, rightly given the benefit of doubt and acquitted. No miscarriage of justice has resulted from their acquittal. Consequently, we dismiss the revision against their acquittal.
' The death sentence of Chiragh appellant is confirmed. and revision dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.