' MAZHARUL IIAQ, J.-- Nisar Ahmad (24), Anwar Ahmad alias Nati (26) and Irshad Ahmad (32) were tried for the double murder of Fateh Muhammad, Anwarul Haq and for having caused injuries to the witnesses of this case. On 24th November, 1981, Additional Sessions Judge, Sahiwal, convicted them on the two counts under sections 302/34, P.P.C. Anwar Ahmad was sentenced to death for the murder of Fateh Muhammad and the remaining accused were sentenced to imprisonment for life.
Each was fined Its.2,000 in default to undergo 2 years' It.l. Further. The fine if realised, half of it was to be paid as compensation to the heirs of Fateh Muhammad deceased. On the second count under sections 302/34, P.P.C. Irshad Monad accused was sentenced to death for the murder of Anwarul Haq and the remaining accused were sentenced to imprisonment for life with a fine of Rs,2,000 each, in default to undergo 2 years' R.I. Further. The fine if realised, half of it was to be paid to the heirs of the deceased Anwarul Hay. All accused were convicted on three counts under section 324/34, P.P.C. And sentenced to one year's R.I. Each on each count. All sentences were ordered to run concurrently. Appeals of the convicts, the connected murder reference and complainant's revision petition for enhancement of sentences are before us.
2. Noor Ahmad, father of the three accused, owned Killa Nos.15, 16, and 25 in Square No,56, situated in Chak No,91/6-R, Tehsil and District Sahiwal. About twenty years back the complainant party got its possession during the consolidation proceeding;. Noor Ahmad, however, could not get the possession of the land which fell to his lot and complainant's land was transferred to one Abdul Ghani. It was the land of one Fateh Din which fell to the share of Noor Ahmad. Since Noor Ahmad could not get possession from said Fateh Din, the accused bore grudge against the complainant party and on 26-7-1980 at about 1-30 p.m. When Muhammad Ali informant went to the ilillage mosque, Anwar accused who was present there asked him as to why they were not settling the age old land dispute which arose out of the consolidation proceedings. There was thus an altercation between them. Muhammad All came home but after a while Anwar also reached there and while standing outside Muhammad Ali's house, he started abusing him and asked him to come out, upon which Muhammad All came out. Irshad and Anwar were armed with Churras. Nisar had a Toka in his hand. Muhammad All stopped them from abusing, but the accused declared that they would teach them a lesson for remaining in possession of their land. On the alarm Fateh Muhammad, Anwarul liaq (deceased) and P.Ws. Ghulam Nabi, Ghulam Sarwar, Muhammad Ramzan and Ikramul Haq also reached there. Anwar inflicted a Churra blow to Fateh Muhammad, Irshad and Nisar caused injuries to Anwarul Haq. Both fell down. Thereafter Ghulam Nabi, Ghulam Sarwar, Ikramul Haq and Muhammad Ramzan tried to apprehend the accused but except Ramzan the remaining witnesses were injured by the accused. Further, according to the prosecution, in their attempt to apprehend the accused and also in their defence, the witnesses caused injuries to the three accused. Fateh Muhammad and Anwarul Haq died at the spot. The injured witnesses were taken to the hospital where they were medically examined. P.W.6 Dr. Muhammad Amin, Medical Officer, D.H.Q. Hospital, Sahiwal, examined the three injured witnesses on 26-9-1980, at 3-45 p.m.
And found the following injuries on their persons:- ' Ghulam Nabi:
(1) A stabbed wound 7 c.m. x 3 c.m. x deep going on the front and upper part of left thigh about 7 c.m. Below and parallel to the left inguinal ligament. There was bleeding from the wound and the muscle under the wound were also cut.
(2) A cut mark 7 c.m. x linear on the upper and outer part of left buttock.
(3) An incised wound 4 c.m. x 1/5 c.m. x skin deep on the front of penis about middle.
(4) A cut mark 1 c.m. x 1/8 c.m. On the penis just below the injury No,3.
' Muhammad Ali:
(1) An incised wound 3 c.m. x 1 c.m. x deep going on back of lower part of left chest, about its middle line.
(2) An incised wound 8 c.m. x 3 c.m. x muscle deep on the front of right chest starting just below the right nipple and going downwards and outwards.
(3) An incised wound 5 c.m. x I c.m. x skin deep below injury No,2.
(4) An incised wound 3 c.m. x I c.m. x skin deep on the inner side of right wrist.
(5) An incised wound 11/2 c.m. x I c.m. x skin deep on the outer side of left thumb below the nail.
' Ghulam Sarwar:
(1) An incised wound 3 c.m. x 1 c.m. x skin deep on the front of right elbow ('cubital' fossa).
(2) An incised wound 1 c.m. x 1/6 c.m. x skin deep just above and to the left of injury No,l.
(3) An incised wound 1/4 c.m. x 1/4c.m. x 1/2c.m. On the right loin.
' All injuries were simple in nature.
3. On receiving information P.W.13 Farooq Ahmad S.I., S.H.O. Police Station Saddar Sahiwal went to the hospital and the same day at 4-50 p.m. Recorded statement Exh.P.E. Of Muhammad Ali on the basis of which the formal F.I.R. Exh.P.E./1 was registered at the police station at 5-15 p.m. The same day. After registering the case, the S.I. Went to the place of occurrence which is 7 miles from the police station. He prepared the necessary documents and sent the dead bodies for their post- mortem examination. He took into possession blood-stained earth vide memos. P.S. And P.T. From underneath the dead bodies of Fateh Muhammad and Anwarul Haq, respectively. The S.I. Then went to the house of Nisar accused who lay injured on a Charpai with a blood-stained Toka in his hand. The S.I. Got his blood-stained clothes Kurta P.14 and Vest P.15 removed and made them into a sealed parcel vide memo. Exh.P.V. Attested by P.W.11 Muhammad Ramzan and lkramul Haq (not produced). Nisar was got medically examined by P.W.6 Dr. Muhammad Amin on 26-9-1980, who found the following injuries on his person:-
(1) A lacerated wound 5 c.m. x 1 c.m. x bone deep on the right side of top of head 11 c.m. Above the rigth ear.
(2) A lacerated wound 5 c.m. x 1 c.m. x bone deep on the right side of back of head 5 c.m. Behind injury No,l.
(3) A lacerated wound 3 c.m. x # c.m. x # c.m. x bone deep on the left side of head, 2 c.m. To the left of injury No,2.
(4) A stabbed wound 7 c.m. x 3 c.m. x deep going on the left chest axillary area, about middle and about the level of nipple, obliquely directed. Air was coming out of the wound and bleeding was also coming out with the passage of the air.
(5) An incised wound 3 c.m. x 1 c.m. x muscle deep on the back of right chest near the angle of right scapula.
(6) An incised wound 2 c.m. x 1/5 c.m. x skin deep on the front of left wrist.
(7) An incised wound 7 c.m. x 1/2 c.m. x skin deep on the inner side and upper part of the left palm.
(8) An incised wound 2 c.m. x 1/2 c.m. x skin deep on the middle phalynx of left index finger.
(9) An incised wound 2 c.m. x 1/2 c.m. x skin deep on the middle phalynx of left middle finger, in front.
(10) An incised wound 1/2 c.m. x 1/5 c.m. x skin deep on the front of joint of midle and upper phalynx of left ring finger.
(11) An incised wound 2 c.m. x 1/2 c.m. x skin deep on the ulner surface of right palm.
(12) An abrasion 4 c.m. x 1 c.m. With swelling 10 c.m. x 8 c.m. On the left shoulder.
' All the injuries except injury No,4 were simple. Injuries 4 to 11 were caused by sharp-edged weapon while injuries 1 to 3 and 12 were caused by blunt weapon.
4. P.W.1 Dr. Javed Mahmood Akhtar, Medical Officer, D.H.Q. Hospital, Sahiwal, held the autopsy on the dead body of Fateh Muhammad on 27-9-1980 at 7-30 a.m. And found an incised wound 6 c.m. x 1 1/4 c.m. x deep going, ribs in the line were cut on the back lower part of left chest. 10th rib at the back was cut. Pleura was also cut. Death in his opinion was due to shock and heamorrhage caused by the injury which was sufficient in the ordinary course of nature to cause death.
' The same day at 9.00 a.m. The doctor held the autopsy on the dead body of Anwarul Haq and found the following injuries on his person:-
(1) Incised wound 7 x 2 c.m. Deep going on the front of middle part of left chest 4 c.m. Below the left nipple.
(2) Incised wound 3 x 1/2c.m. On the outer part of left chest 7 c.m. below the axilla.
(3) Abrasion 16 x c.m. On outer middle part of right chest.
(4) Incised wound 7 1/2 x 1/2 c.m. x skin deep on front upper part of right arm.
(5) Incised wound 11 1/2 x 3/4 c.m. x muscle deep in the middle, skin deep both sides on the outer upper part of right thigh.
(6) Abrasion 2 x c.m. On the front lower part of right fore-arm.
(7) Abrasion 1 x 1 c.m. On the bridge of nose.
(8) Swelling 4 1/2 x 3 c.m. On the left eye lids.
' Left lung and pleura were cut. Heart was also cut. Death in the opinion of the doctor was due to shock and haemorrhage caused by injury No,1 causing injury to the left ventricle of the heart. That injury was sufficient to cause death in the ordinary course of nature. Injuries 1, 2, 4, and 5 were caused by sharp-edged weapon and rest by blunt weapon.
5. Farooq Ahmad S.I. Arrested Anwar and Irshad accused on 27-9-1980. Anwar was wearing a Shirt P.8 and a Shalwar P.7, which were stained with blood. He took them into possession vide memo.
Exh.P.H. Irshad Ahmad accused was wearing Shirt P.9 and a Chaddar P.10 stained with blood. They were got removed and taken into possession vide memo. Exh.P.I, attested by P.W.5 Muhammad Shafi and Ata Muhammad (given up as unnecessary). On 30-9-1980 Anwar accused in custody led to the recovery of blood-stained Churra P.11 from Maize fields which was made into a sealed parcel vide memo. Exh.P.J. The same day Irshad got recovered Churra P.12 from the sugarcane field, which was made into sealed parcel vide memo. Exh.P.K. These recoveries were also attested by P.W.5 Muhammad Shafi and Ata Muhammad (not produced).
6. On 28-9-1980 the accused er medically examined by P.W.1 Dr. Javed Mahmood Akhtar, Medical Officer, D.H.Q. Hospital, Sahiwal. He found the following injuries on them:- ' Irshad Ahmad:
(1) Swelling 4 x 2 c.m. Just below the right eye.
(2) Swelling 8 x 5 c.m. On the back of left hand.
(3) Slightly septic abrasion 1 x 1 c.m. On the palm of right hand.
(4) Abrasion two in number 1 x 1/6 c.m. Each on the palmer surface of right ring finger.
(5) Scabbed abrasion 4 c.m. x 1/6 c.m. On the outer lower part of right chest.
(6) Septic punctured wound on the front upper part of right thigh.
(7) Septic blister wound 3 x 2 c.m. On the palmer surface of thumb of right foot.
(8) Septic blister 3 x 3 c.m. On the palmer surface of right sole 4 c.m. From injury No,7.
(9) Abrasion 3/4 x 1/2 c.m. On the dorsum at base of right little finger of right foot.
(10) Multiple blisters in an area of 12 x 7 c.m. On the left sole. Anwarul Haq:
(1) Lacerated wound 3 x # c.m. Scalp deep mildly septic on the top and middle of head, transversely placed.
(2) Abrasion 8 x 4 1/2 c.m. On the front upper part of right arm.
(3) Multiple abrasions in an area of 7 x 3 c.m. On the front middle part of right fore-arm.
(4) Septic abrasion 1 x 1 c.m. On the outer and base of right index finger.
(5) Horse shoes shape incised wound 2 x 1/4 c.m. x cuticle deep on palmer surface of left thumb.
' All the injuries were simple caused by blunt weapon.
7. After completing the investigation, the accused were sent up to stand trial. All accused, who are brothers, denied guilt. Explaining the case against them Anwar Ahmad made the following detailed statement, which defence was adopted by his brothers:- "On the day of occurrence I had gone to the village mosque for taking a bath there. Shortly afterwards Muhammad Ali P.W. Also turned up there and insisted to take the bath first. I resisted his attempt and it led to unpleasantness ending in exchange of abuses. Thereafter P.W. Muhammad Ali left the mosque without taking the bath in a sullen mood while murmuring. After the bath when 1 left for home I passed by the house of P.W. Muhammad All and suddenly the two deceased and the injured P.Ws. Except Ikramul Haq emerged from the house variously armed and attacked me. I ran for my life raising alarm which attracted my brothers Irshad an Nisar co-accused. I was overtaken by the above mentioned persons in front of my house where they started causing injuries to me.
The co-accused who had turned up in the meantime tried to defend me. They too were subjected to an attack and they defended themselves and myself. This clash produced injuries on both the parties. Unfortunately two of the injured from the complainant side breathed their last while co- accused Nisar who was also dangerously injured survived. Ikramul Ilaq and Itamzan P.Ws. Were nowhere near the spot. The complainant party in collusion with the Investigating Officer Farooq Ahmad S.I. Etc. Who went out of his way to help the complainant party and carried out a biased investigation in attempting to show that we initiated the occurrence. This, however, was factually incorrect because the complainant party was the aggressor and we only acted in self-defence.
After this occurrence we went to our house in injured conditions and lay there. Nisar co-accused was almost unconscious and he was secured by the police from our house. I and Irshad were also detained by the police on the same day but they did not show our arrest on that very day in their vain attempt to show that we had absconded after the occurrence. The weapons were planted on me and the co-accused to beef up this case. We have been falsely implicated by putting up a false version of the present occurrence. The P.Ws. Produced in this case are closely related to the deceased. No independent witness of the locality has been produced as the prosecution version is a concocted one."
8. Disbelieving the defence version and relying on the statements of the prosecution witnesses trial Court came to the conclusion that the accused in furtherance of their common intention, had attacked the two deceased and the witnesses. Criticising the finding learned counsel for the appellants contended that the motive story was not satisfactorily proved by the prosecution, because on its own showing the accused were supposed to get land from a third person namely Fateh Din. Therefore, if they had failed to obtain the possession of their lot, then they should have had no grudge against the complainant. Admittedly civil litigation was going on between the accused and the third person mentioned above. On the other hand, challenging the consolidation proceedings, the litigation between the accused and the complainant party went up to the Board of Revenue, the result of which has not been disclosed by either party nor the Investigating Officer cared to find out the result of the appeal, although documentary evidence could be led but the same has been withheld. Moreover, we find that the accused had to get land from Fateh Din in lieu of the land which fell to the lot of the complainant party. It is also noteworthy that the consolidation took place about twenty years back and admittedly all these years no untoward incident took place between the parties who are also neighbours and are related to each other. We are not satisfied with the motive story. Learned counsel for the appellants also contended that since the prosecution failed to prove the motive as alleged by them, therefore, the defence story be accepted that is the occurrence took place over a dispute in the mosque and the complainant party was the aggressor. In support of this submission reference was made to the statement of P.W. Muhammad Ramzan who said under cross-examination that all prosecution witnesses and the two deceased came out on the spot from the house of Muhammad Ali informant. This admission, according to the learned counsel, indicated that the complainant party lay in ambush in the house of Muhammad Ali and after premeditation attacked Anwar accused who passed in front of the house of Muhammad Ali. It was also argued that in the F.I.R. The three accused were said to have been injured in this case by the witnesses but there is no mention of the weapon with which they defended themselves. It was for the first time at the trial that the witnesses took up the position that during the attack Ikramul Haq pulled out a Dang from the stack of wood. Meanwhile P.W.2 Ghulam Sarwar went to his house and brought two hatchets. He gave one to P.W. 10 Ghulam Nabi and then the three witnesses used these weapons in defence. According to Ghulam Sarwar, he was attacked by Nisar accused with a Toka after the witness had brought a hatchet for himself and one for Ghulam Nabi. This appears to be most unlikely because hatchet has a longer handle and a person armed with Toka would not be in a position to effectively injure the one who is armed with a hatchet. Perusal of the three injuries suffered by Ghulam Sarwar also supports this observation because the dimension of the injuries do not fit in with the long blade of a Toka. P.W.12 Ghulam Sarwar had suffered two injuries on his arms and one on the loin which is 1/2 c.m. x c.m. x 1 c.m. The medical evidence thus belies his statement. On the other hand, we find that P.W.10 Ghulam Nabi in his police statement did not mention whether Nisar had inflicted injuries to Ghulam Sarwar.
In fact none of the witnesses in their police statements mentioned that P.W.12 Ghulam Sarwar fetched two hatchets from his house and Ikramul Haq armed himself with a Dang. On the other hand, it is also noteworthy that the injuries suffered by P.W.10 Ghulam Nabi also do not appear to have been caused by a Toka which has a long blade. Ikramul Haq was said to have been attacked by Nisar accused with a Toka from the blunt side of the weapon. This would again be very unlikely.
It is also noteworthy that Ikramul Haq was armed with a Dang and, therefore, Nisar Ahmad accused could not have effectively hit him because a Dang is a much longer weapon. It is also noteworthy that he was said to have been medically examined on the third day of occurrence. He also did not go to the hospital with others. His medical evidence is also not forthcoming, he has neither appeared as a witness in this case nor his injuries have been proved. It may also be added here that according to P.W.10 Ghulam Nabi, Ikramul Haq picked up a Danda which was lying by the wall of the house of Muhammad Ali whereas according to other, he had pulled it out from a stack of wood lying nearby. After going through the contradictions and the exaggerations made by the prosecution witnesses which we have analysed above, we are not satisfied with the prosecution version that it was a premeditated attacked. On the contrary, we are inclined to believe that it was a sudden fight. Admittedly, for the last so many years, the parties were living peacefully as neighbours. They are also related to each other. True, there was said to be litigation upto the Board of Revenue about the consolidation of land which concluded but in spite of that, there has never been any show of violence between the parties. It, therefore, appears that the matter of consolidation of land has been put up as an excuse to make believe that the occurrence was premeditated, whereas on the contrary from the circumstances of this case which we have analysed above, it is indicated that there was a sudden flare up between the parties which in all probability started in the mosque bath which is not far away from the houses of the parties and where Anwar and Muhammad All had gone to have a bath. It also appears that as the two reached home, a sudden fight ensued which was unpremeditated and both sides attacked each other.
Under these circumstances, there would also be no question of right of self-defence. True the counter-version was put up through a complaint which according to the trial Court ended because Noor Ahmad complainant (father of the accused) had made a statement that he did not have any evidence to support his version. This observation however is not borne out from any documentary evidence or from the statement of any witness. Be that as it may, as we have already observed that the circumstances appearing in the evidence of this case also do not make out a case of self- defence. The next question for consideration would be whether it was a free fight. Since there was no test of strength as such and there being no previous animus, we are, therefore, of the view that the occurrence in this case would be covered by Exception IV to section 300, P.P.C. In this view of the matter we alter the conviction of lrshad and Anwar to section 304, Part I, P.P.C. On one count each for causing the death of Anwarul Haq and Fateh Muhammad, respectively. Both are sentenced to imprisonment for life. Their sentence of fine of Rs,2,000-on the count is maintained in default to undergo two years' R.I. Each. Irshad is also convicted under section 324, P.P.C. For having caused injuries to P.W. Ghulam Nabi. Similarly, Anwar is convicted under section 324, P.P.C. For having caused injuries to P.W. Muhammad Ali. They are sentenced to one year's R.I. Each which shall run concurrently with the other sentence. On the remaining count under section 324, P.P.C.
They are acquitted. Although, Nisar Ahmad had received a large number of injuries but as we are of the view that he could not cause any injury with his weapon, therefore, we give him the benefit of doubt and acquit him of the charge. With the above modifications, the appeal is otherwise dismissed.
Appeal 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.