' Jamshaid aged 20 years, Akram aged 18 years were tried with Abbas aged 27 years and Ashiq aged 19 years, by the Additional Sessions Judge-I, Sahiwal for having murdered Kallen Khan deceased and made murderous assault on his son Abdul Aziz complainant in furtherance of their common intention. By his order dated 7-1-1982, the learned trial Judge acquitted Abbas and Ashiq accused but convicted, Jamshaid and Akram and sentenced them to life imprisonment and a fine of Rs, 5,000 each under section 302/34, P. P. C. In default of payment of fine to suffer further R. I. For two years each. Jamshaid appellant was further convicted wider section 324/34, P. P. C. For causing hurt with sharp-edged weapon to Abdul Aziz (P. W. 4) and sentenced to two years' R. I.
Likewise Akram appellant was convicted under section 323/33, P. P. C. For causing hurt with blunt weapon to the aforesaid Abdul Aziz complainant and sentenced him to one year R. I. All these sentences of imprisonment were ordered to run concurrently. It was further directed that in the event of the recovery of the fine it shall be paid to the legal heirs of Kallen Khan deceased as compensation. Both the convicts have challenged their conviction and sentence by filing this appeal.
2. The brief facts of the case as unfolded at the trial are that Qayyum, the younger brother of Abdul Aziz (P. W. 4) and son of Kallen Khan deceased came weaping to his house at about 2-30 p. m. He told the complainant that he was witnessing a cock fight in the village where Akram appellant teased him by calling him a "dwarf" whereupon he quarrelled with him and was given beating by Akram. On this Abdul Aziz came out of his house along with his brother namely Qayyum in the lane and hurled abuses upon Akram and warned him against calling Qayyum as dwarf in future. This annoyed Akram who took this warning as his insult and declared that he would avenge the same. It is alleged that after a short while the complainant heard Lalkara from outside the house calling him to come out so that a lesson be taught to him for inflicting insult on the accused party. On hearing this Kallen Khan deceased came out of his house instructing his sons to stay in as he would himself admonish the persons raising Lalkara. Despite these instructions Kallen Khan deceased, Abdul Aziz complainant came out. Commotion thus created in the lane attracted Abdul Shakoor, Alamgir (P. Ws. Not examined) and Muhammad Abbas Baig (P. W. 6) to the spot. In their presence Iamshaid appellant who was armed with a hatchet dealt the blow on the head of Kallen Khan deceased and Akram appellant dealt a Sota blow on his left flank. Kallen Khan as a result of these blows fell unconscious. Abdul Aziz (P. W. 4) went forward to rescue his father but he also was given hatchet blow on his left arm by Jamshaid appellant and a Sota blow on his head by Akram appellant. Abdul Aziz P. W. Allegedly picked up a Soti and to save himself and his father caused injuries to Jamshaid appellant. After the occurrence the appellants took to their heels with their respective weapons. Kallen Khan was removed to his house and after sometime was taken to Civil Hospital Depalpur, where he was admitted for treatment.
3. Dr. Muhammad Afzal (P. W. 5) wrote Rukka Exh. PE/1 to the S. H.
0. Depalpur about the arrival of Kallen Khan deceased in a serious condition. In response to this Rukka Muhammad Nazir A. S.-I. (P.W. 10) reached the hospital and asked the Doctor if Kallen Khan was fit to make statement but the Doctor vide his report Exh. P. G. Replied in the negative. The A. S.-I.
Was therefore, obliged to record the statement of Abdul Aziz complainant in the hospital and sent it for formal registration of the case the same day at 10-15 a. m. On the basis of Exh. P. B. a formal First Information Report Exh. P.B./1 was drawn up under section 307/326/324/ 109/34, P. P. C. At 10-30 p. m. By Muhammad Anwar Head Constable (P. W. 2). Kallen Khan expired in the hospital at 2-30 a. m.
On 10-9-1980 and the S.H.O. Was informed of it by the Doctor through Rukka Exh. P. C. Muhammad Nazir A. S.-I. Prepared the inquest report Exh. P. S. Of the deceased and entrusted the dead body to Jafar Ali Foot Constable (P.W. 1) for autopsy.
4. Dr. Muhammad Afzal (P. W. 5), examined Kallen Khan on 9-9-1980 at 8-00 p. In. And found the following three injuries on his person :-
(1) An incised wound 8 c. m. x a c. Tn. x bone deep on the top of left side of head about 4 c. m. Outer to mid line and 11 c. m. Above left eye-brow in antero-posterior direction. Bone under it was cut and depressed. X-ray revealed depressed fracture of the wall of skull.
(2) A contusion mark 13 c. m. x2 c.m. On the back and outer part with marked swelling around and was difficult.
(3) A contusion mark with abrasion 5 c.m. x 2 c.m left chest mid line above level of injury No, 2 with ' The patient was under shock, his pulse was feeble, B. P. Was 100, general condition was serious and was semi-unconscious. He vomited during examination. Injury No, I was grievous and dangerous to life, and was caused with sharp-edged weapon within the duration of 8 hours. Exh. P.E. Is his medical report.
5. On the same day at 8-30 p. In. The same Doctor examined Abdul Aziz (P. W. 4) and found following four injuries on his person :
(1) A contused wound 5 c. m c.m. x scalp deep on the front of right side of head 7 c. m. Above right eye-brow and 2 c.m. Away the mid line with swelling around.
(2) An incised wound 11 c.m. x c.m. x superficial on the back of right forearm elbow.
(3) A contusion mark with abrasion 11 c.m. x 1 c.m. On the back of ulnar border of right forearm, at middle with swelling around.
(4) A faint swelling on the back of middle of right middle finger and ring finger.
' Injury No, 2 was caused by sharp-edged weapon while the rest with blunt weapon within the duration of 8 hours and Exh. P.F. Is his medico-legal report.
6. On the same day at 8-45 p. m. The same Doctor examined Jamshaid Ali Khan appellant and found the following injuries on his person :-
(1) A contused wound 41 c.m. x 1 c.m. x scalp deep on the right side of head, 7 c.m. Above and in front of right ear with swelling.
(2) An abrasion 4 c.m. x 1 c.m. On the back of right middle finger.
(3) An abrasion 1 c.m. x c.m. On the back of right index finger.
(4) An abrasion 4 c.m. x 11 c.m. On right shoulder just behind top.
(5) A contusion mark 21 c.m. x 2 c.m. On the front of left knee.
(6) A contusion mark 3 c.m. x 11 c.m. On the back of right forearm near wrist, with marked swelling.
(7) A contusion mark 3 c.m. x It c.m. On the back of right forearm near wrist, with marked swelling.
' All the injuries were caused by blunt weapon within the duration of 8 hours. Exh. P. J. Is his medico- legal report.
7. On the same day at 8-50 p. m. The some Doctor examined Mst. Batulan (mother of the appellants) and found the following injuries on her person :-
(1) A contused wound 4 c.m. x 1 c.m. x scalp deep on the right side of head 6 c.m. Above the right ear with swelling around.
(2) A contused wound 3 c.m. x c.m. x scalp deep on the back of right side of head with swelling, 5 c.m. Behind injuries Nos. 1 and 10 c.m. Above and behind right ear.
(3) A contused wound 5 c.m. x 1 c.m. x bone deep on the left parietal region of head 81 c.m. Above left ear with swelling.
(4) A contusion mark 51 c.m. x 3 c.m. As a result of two closely placed blows on the outer aspect of left upper arm above elbow with swelling.
(5) A contusion mark 3 c.m. x 2 c.m. On the back and radial side of left forearm above wrist.
(6) A contusion mark 3 c.m. x 14 c.m. On the back of left scapula with marked diffused swelling around.
' All the injuries were caused by blunt weapon within the duration of 8 hours. Exh. D. A. Is his medico- legal report. On the same day at 9-00 a. m. The same Doctor examined. Mst. Zarina (sister of the appellants) and found the following injuries on her person :.
(1) A contused wound 4 c.m. x 1 c.m. x scalp deep on right side of head, on the top 12 c.m. Above right ear with swelling.
(2) A contused wound 1 c.m. x c.m. x bone deep on the right side of forehead, 4 c.m. Above the eye- brow and 1-2- c.m. Away from mid line with raised swelling around.
(3) A diffused swelling 3 c.m. x2 c.m. On the back of left side of head near top.
(4) A contusion mark 6 c.m. X 3 c.m. On the front and outer part of left elbow.
(5) A contusion mark with marked diffused swelling on the back of left wrist and hand in 11 c.m. x 6 c.m. Area, with abrasions on it.
(6) A contusion mark 7 c.m. x 2 c.m. On the front and outer aspect of right thigh near knee.
(7) A contusion mark 3 c.m. x 2 c.m. On the outer aspect of left leg lower part with diffused swelling around.
(8) A contusion mark with abrasion and swelling 3 c.m. x 2 c.m. On front of right forearm, near wrist.
' All the injuries were caused by blunt weapon within the duration of 8 hours Exh. D. B. Is his medico- legal report.
9. On 10-9-1980 at 2-30 p. In. The same Doctor performed postmortem examination on the dead body of Kallen Khan deceased, brought to him by Jafar Ali and was identified by Mansha and Muhammad Rafiq. In medico-legal report Exh. P. F. Following injuries were noted by the Doctor :-
(1) A stitched wound 8 c.m. Long bearing four stitches.
(2) A contusion mark 13 c.m. x 2 c.m. On the back of left chest.
(3) A contusion mark on the back of left chest near and inner to injury No, 2.
' There was extensive fracture of vault of skull on the left side of head as shown in the diagram involving left temporal, parietal and frontal bone and a piece of parietal bone measuring 5 c.m. x 2 c.m. Was depressed. Membranes were cut under injury No, 1 and ninth rib on the back of left side of chest was fractured under injury No,
2. In the opinion of the Doctor death had occurred due to haemorrhage and shock as a result of injuries Nos. 1 and 2 which were quite sufficient to cause death in the ordinary course of nature. All the injuries were found to be ante-mortem.
10. Ali Muhammad S.-I. (P. W. 11) took up the investigation on 10-9-1980. He mainly investigated this case and prepared the challan. He visited the same day and removed the blood-stained earth from there vide memo. Exh. P.
0. He seized the last worn clothes of the deceased Kurta P. 1, Vest P. 2, Dhoti P. 3 through memo. Exh.
P. A.
11. He arrested Muhammad Akram appellant on 11-9-1980 who while in custody led to the recovery of Lathi P. 5, lying underneath his bedding, from his residential Kotha, which was secured through memo. Exh. P. Q. Jamshaid appellant was arrested on 12-9-1980 and on the same day while under police custody he led to the recovery of blood-stained hatchet P.
5. From his residential Kotha, lying behind a box, which was made into sealed parcel and secured vide memo. Exh. P. R. Both the recovery memos. Were attested by Muhammad Anwar P. W. 9 and Mansha (not examined) besides Ali Muhammad S.-I. (P. W. 11). Ali Muhammad S.-I. Also got prepared site plan Exh. P. D. And Exh. P. D./1 in duplicate from Ranjha Khan P. W. Patwari. Having completed the usual investigation he challaned the appellants.
12. According to the Chemical Examiner report Exh. P. T. The article were found stained with blood and Seriologist report Exh. P. U. Confirmed that the blood on the hatchet to Exh. P. 5 was of human origin.
13. In support of its case, the prosecution produced Abdul Aziz (P. W. 4) the injured witness and Muhammad Abbas Baig (P. W. 6) the eye-witness. Abdul Aziz (P. W. 4) also deposed about the motive of the occurrence. Recovery of weapons of offence at the instance of the appellant was also relied upon which sought to be proved through Muhammad Anwar (P. W. 9) and Ali Muhammad (P. W. 11).
14. Muhammad Akram appellant when examined under section 342, Cr. P. C. Admitted that he had quarrelled with Qayyum (son of the deceased) over cock fight near his house. His brother Jamshaid intervened. Qayyum abused him whereupon Jamshaid slapped him. Qayyum went weeping to his house. The appellant further stated that he then left for his tubewell and was not present at the time of the occurrence. He declined to produce defence evidence.
15, Jamshaid appellant stated that his brother (co-accused) Muhammad Akram and Qayyum (son of the deceased) had quarrelled over a cock fight. He intervened whereupon Qayyum abused his motner, therefore, he slapped him. Qayyum went weeping to his house. After a short while Kallen Khan dece tsed alongwitn his son Abdul Aziz and one Alamgir came armed and trespassed into his house and hurled abuses. He returned the abuse whereupon taey attacked him. His mother Mst. Batulan and his sister Mst. Zarina intervened to save him but they too were beaten up. His mother and sister inflicted injuries to Kallen Khan deceased and Abdul Aziz in order to save him. He approached the police for the registration of the case but they refused. Consequently he tiled a private complaint under section 307/452/ 34, P. P. C. Against Kellen Khan deceased Abdul Aziz and Alamgir, wherein they were summoned as accused persons. He further stated that the rest of his co-accused were not present at the time of occurrence. He examined two witnesses in his defence, his sister Mst. Zarina as D. W. 1 and his mother Mst. Batulan as D. W.
2. According to these defence witnesses, they were siting in their courtyard at 12-30 p. m. When Kellen Khan deceased, Alamgir and Abdul Aziz duly armed had trespassed into their house and started abusing Jamshaid who also returned the abuses, whereupon the aforesaid three persons started inflicting injuries to Jamshaid. They intervened to save the life of Jamshaid, but they were attacked and injured. Msi. Batulan D. W. 2 stated that she picked up a hatchet lying nearby while Zarina picked up a stick and both of them caused injuries to the deceased and the P. Ws. To save themselves and also to save Jamshaid. They sent Jamshaid for the registration of the case but the police refused to do so.
16. The learned trial Judge believed the testimony of eye-witnesses, the evidence of recovery of weapons and the evidence of motive against the appellants and rejected the defence version being improbable and untrustworthy.
17. By putting both the prosecution as well as both the defence version in juxtaposition, I find that they are largely similar. They different only as to the venue of the occurrence and each party has dubbed the other as the aggressor.
18. Both the parties have admitted that Qayyum son of Kallen Khan deceased and Akram appellant were witnessing a cock fight immediately before the occurrence and quarrelled with each other.
Jamshaid slapped Qayyum, who then went weeping to his house and complained against the conduct of appellant to his fatner (the deceased) and his brother Abdul Aziz (P. W. 4). It appears to me, that the complainant party was aggrieved because admittedly it was Qayyum who received beating at the hands of the accused party. It would hardly make any difference that he was beaten up by Akram (as alleged by the complainant) or by Jamshaid (as claimed by the defence). The fact remains that Qayyum was beaten by the appellant and naturally the complainant party being aggrieved would like to avenge the insult. I find myself unable to agree with the learned trial Judge that the motive set up by the prosecution has been proved so as to provide strengtn to the prosecution story. Abdul Aziz (P. W. 4) while describing the motive stated in tne F.
1. R. That after Qayyum reached home, he came out in toe lane and asked Akram to refrain from teasing him. At the trial he improved his version by saying that he had abused Akram in the lane while asking him to desist from calling Qayyum as dwarf. I think this improvement of 'abusing' which is conspicuously missing from the F. I. R. Has been made in order to create a cause of annoyance for the appellants to attack the complainant party. To me it seems that it was the complainant party which was being aggrieved on account of beating of Qayyum and therefore, they attacked toe appellants to take the revenge.
19. The next point which apparently influenced the judgment of the learned trial Court is the place of occurrence which is situated in the lane close to the house of the complainant party as against the courtyard of the house of the appellants, alleged by the defence because the blood-stained earth was allegedly removed from the lane near the house of the complainant. May be that it is true, but it remains to be explained by the prosecution as to how the two ladies namely, Mst.
Batulan (motner of the appellant) and Mst. Zarina (sister of the appellants) received numerous injuries on their person. Abdul Aziz complainant has made a deliberate attempt to explain them when he volunteered a statement which reads as under :- "that after the occurrence our womanfolk had a fight with the women of the accused party in woich injuries were suffered by the ladies on both the sides and that I came to know about this fact while I was in the hospital. Our women had also sustained injuries but they were never medically examined. I was told on the following day of my medical examination tnat our women and the women of the accused party had a fight. I did not disclose before the police during the investigation of this case about the women fight."
20. It is to be noted that the explanation given about the injuries suffered by the two ladies does not find mention in the F. I. R. And quite obviously Abdul Aziz P. W. Has concocted this excuse to provide an answer to the omission of this fact in the F. I. R. By saying that he learnt about the injuries of Mst.
Batulan and Mst. Zarina next day in the hospital. This blatant lie stand exposed for the reason that Jamshaid appellant, his mother and his sister were examined by the same Doctor in the same hospital on the same day with a difference of about 15 to 30 minutes of the examination of the complainant party. Abdul Aziz was examined at 8-30 p. m. While Jamshaid at 8-45 p. m. Mst.
Batulan at 8-50 p. m. And Mst. Zarina at 9 p. m. The Doctor had candidly admitted that Abdul Aziz, Kallen Khan (deceased), Jamshaid appellant and his mother and sister Mst. Batulan and Mst.
Zarina's injuries are of the same duration and they all had reached the hospital at one and the same time and were examined simultaneously. It was, therefore, impossible for Abdul Aziz (P. W. 4) to be ignorant about the injuries of ladies. He deliberately did not disclose this fact in the F. I. R. And also avoided to mention it in his examination-in-chief at the trial. When pressed hard, during the cross-examination, then he coined the excuse which as I have observed earlier was apparently false. I am, therefore, inclined to, hold that Abdul Aziz complainant has deliberately suppressed the injuries caused to the ladies of the appellant and this fact strongly recoils upon the prosecution case. No doubt that the ladies who have appeared in defence are closely related to the appellants but same position is with the prosecution witnesses. Abdul Aziz (P. W. 4) is the son of the deceased while Muhammad Abbas Baig (P. W. 6) is the "Phoophizad" of Abdul Aziz. Muhammad Abbas is also not the resident of the locality rather he resided a mile away from the place of occurrence. He is stated to have reached the scene of offence per chance which appears to be doubtful. The presence of Abdul Aziz is not disputed by the defence but, as observed earlier, his evidence is not worthy of placing implicit reliance thereon.
21. As far as the venue of the occurrence is concerned, I find that the learned trial Court is right to hold that since no blood was found in the courtyard of the appellants, therefore, it was established that occurrence had taken place in the street. As the two ladies reached the spo during the occurrence and also received the brunt of the attack, therefore, it can be fairly inferred that the appellants lived in close proximity to the scene of occurrence.
22. I am of the view that both the parties have exaggerated in order to show themselves as innocent and laid heavy blame on the opposite party. From the close scrutiny of the evidence and the material available on record, I find that Qayyum was beaten up by Jamshaid, who went home weeping and complained against Jamshaid. Kallen Khan deceased and his son Abdul Aziz came out in the lane in an excited mood to avenge Qay.);urn's beating. Seeing Jamshaid. They attacked him who Lried for help. Hearing his alarm, his sister Mst. Zarina and mother Mst. Batulan came to his rescue but they were also beaten and in this manner Jamshaid slipped into his house, and came armed with a hatchet and in order to save his mother and sister wielded the weapon from its right as well as the blunt side and caused injuries to Kallen Khan deceased and Abdul Aziz P. W. Akram appellant appeared to be absent from the spot. Had he been present there, then he would have not escaped unhurt. I am fortified in my view that it was Jamshaid who had slapped Qayyum and, therefore, he was selected as the target.
23. It flows from the above discussion that the motive laid on the side of the complainant. Two persons were injured on the complainant side, including Kallen Khan deceased and they suffered in all, six injuries whereas three persons were injured on the appellant's side who suffered 21 injuries.
It is not the case of the prosecution that the appellant and their ladies had simulated the injuries.
The explanation regarding the injuries of Mst. Zarina and Mst. Batulan coined by Abdul Aziz hardly needs any argument to be falsified. In these circumstances, I am constrained to hold that the prosecution is guilty of having deliberately suppressed injuries suffered by the lady members of the appellants party, and rendered the prosecution story highly doubtful. The veracity of eye-witnesses has been completely shaken. The recovery evidence about weapon of offence is also of no help to the prosecution because even if the recovery of hatchet is believed, it would not add strength to the prosecution case, particularly when the ocular evidence has failed to inspire confidence.
24. For the foregoing reasons I hold that Muhammad Akram appellant did not participate in the occurrence and Jamshaid appellant was quite within his right to cause the death of Kallen Khan in order to save himself as well as his sister and mother who were under severe attack by Kallen Khan deceased and his son Abdul Aziz. Consequently I accept this appeal and set aside their conviction and sentence awarded, to them, under section 3W/324/323/34, P. P. C. They shall be released forthwith if not wanted in any other case.
Appeal occepted.