' Moosa son of Muhammad, aged 52 years, Yaqoob son of Sardara, aged 36 years, Ibrahim son of Hayat, aged 25 years, Manzoor Ahmad son of Sardara, aged 39 years, Mansha son of Ghulam aged 30 years, Hayat son of Muhammad, aged 54 years, Younus son of Noora, aged 25 years, Noora son of Sardara, aged 52 years, and Mansha son of Hayat aged 30 years were tried and convicted by Sessions Judge, Vehari and sentenced to imprisonment for life and a fine of Rs,1,000 each in default to undergo further R.I. For two years each under section 302 read with section 149; P.P.C., 10 years' R.I.
Each and a fine of Rs,1,000 each in default to undergo further two years' R.I. Under section 307/149, P.P.C. And two years' R.I. Each under section 148/149, P.P.C. The sentences were ordered to run concurrently and the fine imposed under section 302 was ordered to be paid to the heirs of the deceased and fine imposed under section 307, P.P.C. Was ordered to be paid to Mahmood alias Monda injured P.W. All the convicts have filed this joint appeal (Criminal Appeal No,674/77) challenging both their convictions and sentences.
2. The incident took place on 24-11-1974 at 8-00 a.m. In Chak No,55/W.B. Tehsil Vehari 5 miles away from the Police Station, Vehari was reported to the police by Allahyar (P.W.4) vide his statement Exh.P.A. Recorded by Ch.Fazal IN .Rim, S.I. (P.W.13) at Civil Hospital, Vehari as both the injured Moosa and Monda were not in a fit condition to make statement being unconscious. On the basis of Exh.PA, formal F.I.R. Exh.P.A./1 was drawn up at 3-30 p.m.
3. The prosecution case briefly is that at the fateful time Allahyar complainant (P.W.4) and Manzoor P.W.(not produced) were going to their square and Mahmood alias Monda (P.W.7) and Moosa deceased were following them at a distance of about a killa and were carrying wheat-seed with them. When they reached near Bhaini of Hayat appellant, Moosa son of Muhammad, Younus, Noora, his brothers Yaqoob and Manzoor, Mansha his brother, Ibrahim and Mansha sons of Ghulam appellant armed with Sotas while Hayat appellant armed with a gun emerged from a sugarcane field. Hayat appellant raised Lalkara that they would not be spared, whereupon Moosa and Manzoor struck Sota blows on the head of Monda P.W. As a result of which he fell on the ground and then all these assailants inflicted Sota blows both to Monda and Musa. Mansha appellant inflicted Sota blow on the head of Moosa. Allah Yar and Manzoor P.Ws.Came to rescue them but Hayat appellant fired with his gun in the air to keep them away. The alarm raised by the injured persons and other P.Ws. Attracted Muhammad Yaqoob (P.W.8) and Allah Ditta (P.W.10). Seeing them the appellant made good their escape. Both the injured were removed to Civil Hospital, Vehari. The motive as set up in the F.I.R. Was that Moosa deceased was suspected as having illicit connections with Mst. Khatoon sister of Hayat and sister-in-law of Moosa appellant.
4. Dr.Muhammad Afzal Malik (P.W.5) examined Moosa in his lifetime at 12-30 p.m. On 24-11-1974 and found as many as 17 injuries on his person which mostly involved his legs and arms. Four of these injuries were found to be grievous as there were fractures of ankle, knee and elbow and his forearm. Rest of the injuries were found simple. He breathed his last on 25-11-1974 at 3-00 a.m. In the hospital and the same doctor carried out his post-mortem examination at 12 noon the same day, and noted almost the same number of injuries on the dead body. In the opinion of the doctor the death occurred due to shock and haemorrhage resulting from multiple injuries on his body. He further opined that injuries were caused with blunt weapon and were ante-mortem. The probable duration between injuires and death was about 24 hours and between death and post-mortem about 9 hours.
5. The same doctor had examined Monda P.W.At 12-30 p.m. On 24-11-1974 and found 11 injuries on his person which were caused with blunt weapon. They included three grievous injuries which involved the fracture of leg, upper arm, lower half of the right leg and another fracture at lower 1/3rd portion of the same leg.
6. Fazal Karim S.I.(P.W.13) having received information about the occurrence on 24-11-1974 reached the Civil Hospital Vehari vide Rukka Exh.P.R./1 and another Rukka Exh.P.S./1 and registered the case at the statement of Allahyar (P.W.4) as stated above. He drew up the injury statement as well as the inquest report of Moosa and also investigated the case. He arrested all the accused persons and recovered Dangs P.2, P.3 and P.5 from Muhammad Yaqoob, Manzoor, Ibrahim and Noora which were not blood-stained. After completing the usual investigation, he challaned the case to Court.
7. At the trial the prosecution in support of its case examined Allahyar first informant (P.W.4), Monda (P.W.7), Muhammad Yaqoob (P.W.8) and Allah Ditta (P.W.10) as eye-witnesses. Allah Yar and Allah Ditta also deposed about the recovery of sticks from Yaqoob, Manzoor, Ibrahim and Noora appellants. Dr.Muhammad Afzal Malik proved the injuries of Monda and also deposed that Moosa deceased has met unnatural death due to violence. The defence of the appellants was denial simplicitor and they professed innocence. However, they did not examine any witness in their defence.
8. The learned trial Court having believed the prosecution case convicted all the appellants on the charges of rioting, murderous assault on Monda P.W. And murder of Moosa deceased and sentenced them accordingly as indicated in para. 1 of the judgment. However, the learned trial Court refrained from awarding sentence of death to the appellants for the deceased had died due to cumulative effect of the injuries and none of the injuries was individually fatal.
9. I have heard the learned counsel for the appellants as well as for the State and also perused the record.
10. Motive is stated to be that Moosa deceased was suspected of having illicit liaison with Mst.
Khatoon sister of Hayat appellant and on this account he was done to death by the appellant. In the circumstances, therefore, it was Hayat appellant who had direct motive against the deceased.
Had he been present at the spot with a gun as prosecution wants us to believe then he would have definitely fired at and killed Moosa deceased. On the contrary Hayat appellant allegedly fired in the air. Neither any empty was recovered from the spot nor the gun alleged to have been used in the occurrence. Admittedly neither the deceased nor any P.W. Suffered a gunshot injury muchless at the hands of Hayat appellant. All these circumstances throw grave doubt as to his participation in the occurrence and, therefore, I feel no hesitation to hold that he was not present at the time of occurrence. Consequently I set aside his conviction and sentence on all the charges and acquit him.
11. Learned counsel for the appellants submits that the motive set up by the prosecution is highly improbable inasmuch as Moosa deceased was 21 years of age while Mst.Khatoon sister of Hayat appellant with whom the deceased was suspected as having liaison was an old lady of 60 years of age. The argument has force, therefore, I hold that motive set up by the prosecution is not at all convincing and is straightaway rejected.
12. He next contended that even if it is admitted that the remaining 8 appellants were responsible for causing injuries to Monda P.W.And to Moosa deceased, then the question would arise, what offence they had actually committed. It is pertinent to note that although both Moosa and Monda were completely at the mercy of the appellants, yet they meticulously avoided to inflict an injury on any vital part of their bodies, rather we find that the injuries specially the grievous ones were inflicted on their legs and arms, and it was due to the shock produced by them that Moosa had died, however, Monda P.W.Survived. The seat of the injuries unmistakably proves that the appellants did not have the intention or common object to do away with them. They can however be safely burdened with the knowledge that the injuries caused by them to Moosa would result in his death. In the circumstances specially when the motive is shrouded in mystery, I hold that an offence under section 304/149, P.P.C. Has been committed by the appellants. Likewise the injuries caused to Monda P.W. Constitute an offence under section 308/149, P.P.C. Accordingly I alter their conviction from sections 302/149 and 308/149 to 304/149 and 308/149, P.P.C.
13. During the pendency of the appeal both Monda P.W. And Allahyar (first informant) the real brothers of Moosa deceased have died. Mst. Surreya widow of Mahmood alias Monda, Ahmad son of Gaila father of Moosa deceased, Mst.Rajan mother of Moosa deceased and Mst.Arshad Bibi widow of Allahyar (first informant) have filed affidavits before me saying that they have affected compromise with the accused party through the intervention of their close relatives and elders of the Ilaqa and having received ransom they have pardoned the appellants. They further stated that in view of the compromise they would not object if the appeal is accepted.
14. Since I have held that the circumstances of the case disclosed commission of offences under sections 304/149 and 308/149, P.P.C., therefore, the question that what sentence should be imposed upon the appellants has become bit easier for the reason that both the parties have compromised and it would, therefore, be appropriate to sentence them on both counts to the period they have already undergone which comes to more than two years as they were convicted on 16-7-1977 and their sentence was suspended on 23-9-1979. Consequently in the terms stated above this appeal is partly accepted. The appellants are on bail, they stand discharged of their bail bonds.