' JAVID IQBAL, C.J.-- (1) Sardar, son of Mehraj Din, aged 55, armed with gun (injured), (2)
Muhammad Iqbal, son of Ahmad Din, aged 30, armed with pistol, (injured), (3) Ghulam Rasul son of Ghulam Kadir, aged 35, armed with hatchet (injured), (4) Riaz son of Inayat Ali, aged 20, armed with hatchet, (5) Mahmud Ahmad son of Muhammad Akbar, aged 14, armed with Sota (injured),
(6) Ehsanullah, son of Sardar, aged 15, armed with Sota (injured), (7) Muhammad Iqbal son of Mehar Din, aged 32, armed with Sota, (8) Inayat Ali son of Allah Ditta, aged 60, armed with Sota (since murdered), (9) Muhammad Siddiq son of Muhammad Shafi, aged 45, armed with Dang, (10)
Ali Ahmad son of Fateh Din, aged 65, armed with Sota and (11) Sh. Abdul Rashid son of Rehmat Ali, aged 52, armed with Sota have been convicted and sentenced vide judgment, dated 4-10-1982 of the Additional Sessions Judge, Gujranwala, as follows:- ' All of them have been convicted under section 148, P.P.C. And each sentenced to six months' rigorous imprisonment plus fine of Rs,200 or in default to undergo two months' rigorous imprisonment.
' No, 1 and No,2 only have been convicted under section 302, P.P.C. For the murders of Muhammad Hussain Kumhar, aged 45/50, and Khurshid Ahmad, aged 50, and each of them was sentenced to life imprisonment plus fine of Rs, 20,000 or in default to undergo three years' rigorous imprisonment with the direction that if the fine was realized from them, it should be paid to the legal heirs of the two deceased in equal shares.
' All of them were convicted under section 325/149, P.P.C. For causing injuries to Asghar Ali (P.W.7), Irshadullah (not produced) and Javed Iqbal (not produced) and with the exception of No,5 and No,6 each of them was sentenced to five years' rigorous imprisonment plus fine of Rs,1,000 or in default to undergo six months' rigorous imprisonment. Convicts No,5 and 6 were sentenced to nine months' rigorous imprisonment each plus fine of Rs,500 each or in default to undergo three months' rigorouse imprisonment each.
' All the convicts have filed Criminal Appeal No,554 of 1982. There is private Criminal Revision No, 800 of 1982 for enhancement of sentence awarded Ito all the convicts suitably which has been ordered to be heard alongwith the main criminal appeal. There is also State appeal i,e, Cr.A.No,172 of 1983 against the acquittal of ten co-accused of charge under section 302, P.P.C. (Inayat All No,8 having been already murdered). This State appeal has been admitted for full hearing. Likewise there is State Cr.R. No, 211 of 1983 for enhancement of sentence of convicts Nos. 1 and 2 from life imprisonment to death. This has also been admitted for full hearing and it is due to that that all these connected matters are before us in a D.B. All these connected matters are being taken up together and these are being disposed of by this judgment. We may point out at this stage that the parties have entered into a compromise and, therefore, while passing the judgment the terms of compromise will also be considered.
' The following co-accused have been given up the benefit of doubt and acquitted: No, 12, Muhammad Akbar son of Mehraj Din, aged 45, armed with Sota, (13) Mehraj Din (he had died during the trial) and three others on whom the charge was of conspiracy, namely, Muhammad Mansha, Inayat and Ishaque.
' The relationship of the accused party is as follows:- Convicts No,1 and No,12 are brothers and No,13 is father of No,1 and No,12. No,6 is son of No,1 and No,5 is son of No,12. No,7 is nephew of No,13 and first cousin of No,] and No,12. No,4 is son-in-law of No,1 and he is son of No,8 (since murdered). No,9 is first cousin of the wife of No,1. No,3 is servant of No,1, whereas No,10 and No,11 are both friends and partisans of No,1.
' The relationship of the complainant side is as follows: Asghar All (P.W.7) is son of Khurshid Ahmad deceased. Javed Iqbal (not produced) is son of Irshad Ullah (not produced) and Irshadullah (not produced) is collateral of Khurshid Ahmad deceased. Ghulam Sarwar (P.W.6) complainant in the instant case, is first cousin of Irshadullah (not produced) and also collateral of Khurshid Ahmad deceased. It may be pointed out at this stage that Muhammad Hussain Kumhar deceased is not related to these members of the complainant side.
2. The occurrence took place at late Digarwela on 20-11-1980 in the street of village Bhooma Baath at a distance of eleven miles from police station Alipur Chathha, District Gujranwala, and the F.I.R.
(Exh.P.R.) was registered on the same day at 8-30 p.m. On the statement of Ghulam Sarwar (P.W.6) and it was recorded by Khizar Hayat M.H.C. (P.W.4). Initially case was registered under sections 307/109/148/149, P.P.C. But on the death of the two deceased on 21-11-1980, i.e, the following day, sections 302/324/326, P.P.C. Were added thereto.
3. The motive for crime as stated in the F.I.R. Is that the accused party used to collect Jagga tax and to commit various other crimes about which reports had been made to the police by Asghar All (P.W.7), Irshadullah (not produced) and Javed Iqbal (not produced). This was resented by the accused party and, therefore, they bore a grudge against them. The immediate cause of the occurrence as given in the F.I.R. Is that on the day of occurrence there was the annual Muharram Khatam of the cousin sister of Ghulam Sarwar P.W. As well as the real sister of Khurshid Ahmad deceased. The Niaz was being distributed when on the instigation of appellant No,1, appellant No,11 went to that place and abused Javed lqbal as well as Irshadullah (both not produced). It is stated in the F.I.R. That they gave slaps to No,11 and turned him out. It is in this background that when the complainant party was returning towards their Dera and had reached in front of the house of Nazar Muhammad blacksmith (not produced) all the members of the accused party, armed as described above, came out of ambush and attacked Asghar All P.W., Irshadullah and Javed lqbal (both not produced.)
4. The prosecution has produced two eye-witnesses of the occurrence, namely, Ghulam Sarwar (P.W.6) and Asghar All (P.W.7) (injured). Javed lqbal and Irshadullah, also injured, cited in the F.I.R.
Were given up as unnecessary. Similarly Nazar Muhammad cited as eye-witness was not produced.
5. In the F.I.R. The occurrence is reported to have taken place in the following manner Appellants Nos.1 and, 2 namely, Sardar and Muhammad lqbal son of Ahmad Din, opened fire at Javed lqbal and Irshadullah (both not produced) but on the fire of No,2, namely, Muhammad lqbal, Muhammad Hussain Kumhar deceased was injured and fell down. In other words, the intention was to fire, at Javed lqbal and Irshadullah (both not produced), whereas Muhammad Husain Kumhar deceased was instead hit. Thereafter, it is stated in the F.I.R. That No,3 and No,4, namely, Ghulam Rasul and Riaz, gave hatchet blows to Asghar All P.W., whereas the rest of the members of the accused party gave him Lathi blows. They are also stated to have given blows to Javed Iqbal and Irshadullah (both not produced). Then No,12, namely, Muhammad Akbar, acquitted co-accused, gave Sota blows to Khurshid Ahmad deceased on his knees and waist and Sardar No,1 caused injuries to him with the butt of his gun on his temple as well as head. The eye-witnesses separated them and they left the scene of crime raising shouts. It is stated in the F.I.R. That they had acted with the assistance and on the instigation of Muhammad Mansha, Inayat and Ishaque acquitted co-accused. It was also stated in the F.I.R. That Asghar All P.W., Javed Iqbal and Irshadullah (both not produced) had caused injuries to some of the members of the accused party in the exercise of their right of self-defence by throwing stones at them. Thereafter, Muhammad Zaman etc. Took the injured to the hospital. Eventually, Ghulam Sarwar P.W. Lodged the report with the police.
6. All the members of the accused party, namely, the appellants as well as the acquitted co- accused, were arrested on 23-11-1980 by Muhammad Salim S.I. (P.W.12). The recoveries are of no consequence in the present case. No crime empty was picked up from the spot. Although licensed gun and revolver were recovered from Sardar appellant No,1 and Muhammad Iqbal No,2, but these recoveries are of no consequence because no crime empty was picked up from the spot to match these fire-arms. These fire-arms were not sent to the Forensic Science Laboratory. Similarly, two hatchets were recovered from appellants Nos.3 and 4 but these were not found to be blood- stained. Likewise, six Sotas were recovered, in the instant case, but these were also not blood- stained. So, these recoveries have no corroborative value and the case of the prosecution is based entirely on the ocular testimony of two eye-witnesses.
6. The appellants in their statements before the trial Court gave their own version. The defence case is put across by Sardar appellant No,1 who gave the following version:- "At the time of occurrence which is Maghrab prayer time, I was present at my Haveli under construction towards East from the place of occurrence. I heard hue and cry of co-accused Sh.
Rashid. In the meantime he reached in front of house of Nazar Muhammad, Lohar. He was followed by Asghar, Irshad, Javed and their relative Zaman who were armed variously. Sh.Rashid was calling for help. I reached empty-handed to separate the parties and to rescue Sh.Rashid from any harm and beseeched Asghar etc. To spare Sh. Rashid. They flared up and started beating me. Meantime Muhammad Hussain Kumhar deceased and Khurshid Ahmad deceased were attracted to the spot in consequence of the Raula. My son Ihsan alongwith Mahmood, Ghulam Mustafa son of Muhammad Husain, Iqbal, Ghulam Rasool were also attracted to the spot. Asghar P.W. Tried to fire at me but this attempt was frustrated by Muhammad Husain deceased who had snatched Sota from Javed P.W. And aimed it at Asghar P.W. Which instead landed on the head of Khurshid deceased. The shot fired by Asghar P.W. Hit Muhammad Husain from point blank range and killed Muhammad Husain simultaneously. In the melee myself, Mahmood, Ihsan, Iqbal son of Ahmad Din, Ghulam Rasool, on the one hand, and Asghar, etc. On the other hand, received injuries. I accompanied Mustafa son of Muhammad Husain deceased to the police station where Ghulam Mustafa reported the matter to police and a case under section 302, P.P.C. Was registered against Asghar, Irshad, Javed and Muhammad Nawaz. Muhammad Saleem Butt S.H.O. Was present at that time at the police station. Subsequently it apeared that he after reaching at the spot making preliminary investigation for couple of hours in consultation with the complainant party and at the behest of Ch. Ghulam Rasul Batth, Advocate and others who were inimical towards me roped me and my other relatives and supporters in the case to put up a cross-case against the murder case of Muhammad Husain and to eliminate me and my family from the political scene of the village. I was political foe of the brotherhood of which Asghar. Etc. And other P.Ws. Belong. I had secured highest votes of the candidates of the local Union Council from other candidates which were put up by the aforesaid Bradari."
8. Dr. Sultan All (P.W.1) medically examined Khurshid Ahmad deceased, while he was still alive, on 20-11-1980 and found on his person swelling on the left side of head, abrasion on right knee and contusion on left side of chest. The first injury is attributed to Sardar appellant No,1, whereas the remaining two were attributed to Muhammad Akbar No,12, acquitted co-accused. The patient was unconscious and restless. In the cross-examination the doctor had stated that the remaining two injureis could have been caused by a fall and it was for this reason that the trial Court acquitted the co-accused to whom these injuries were attributed.
' Dr. Tahir Anis (P.W.13) conducted post-mortem examination on the dead body of Khurshid Ahmad deceased at 12-30 p.m. On 22-11-1980 and noted the same injuries on his person. In his opinion the first injury was individually sufficient to cause death in the ordinary course of nature through coma and brain compression. The injuries had been caused with blunt weapon.
' Dr. Sultan Ali P.W. Medically examined on 20-11-1980 Asghar All (P.W.7) and found on his person 15 injuries on different parts of the body. Two injuries had been caused with sharp-edged weapon and the rest with blunt weapon. All the injuries were declared simple.
' On the same day at 10-00 p.m. He medically examined Irshadullah (not produced) and found on his person one grievous injury and two simple injuries caused with blunt weapon.
' On the same day he medically examined Javed Iqbal (not produced) and found on his person four simple injuries caused with blunt weapon.
' On 23-11-1980 at 5-00 p.m. He medically examined Ehsanullah appellant No,6 and found on his person one simple injury caused with blunt weapon.
' On the same day he medically examined Mahmood Ahmad, appellant No,5, and found on his person one simple injury caused with blunt weapon.
' On the same day he medically examined Ghulam Rasool, appellant No,3, and found on his person one simple injury caused with blunt weapon.
' On the same day he medically examined Muhammad Iqbal, appellant No,2, and found on his person four simple injuries caused with blunt weapon.
' On the same day he medically examined Sardar appellant No,1 and found on his person four simple injuries caused with blunt weapon.
' Dr. Muhammad Yusuf Farooq (P.W.9) conducted post-mortem examination on the dead body of Muhammad Husain Kumhar deceased on 21-11-1980 at 8-55 a.m. And found on his person a punctured wound on the chest. The death in this case had been caused due to haemorrhage and shock as a result of this injury which had damaged the heart and was sufficient to cause death in the ordinary course of nature. The injury had been caused with fire-arm. It may be pointed out that this injury is attributed to Muhammad Iqbal appellant.
9. We have heard learned counsel for the parties and carefully perused the record. There is background of previous enmity between the parties and there is no corroborative evidence of consequence in the form of recoveries in the instant case. The prosecution case is based mainly on the ocular testimony of two eye-witnesses, namely, B Ghulam Sarwar (P.W.6) and Asghar Ali (P.W.7) who are closely related to the deceased Khurshid Ahmad. Ghulam Rasool appellant was injured in the course of occurrence and, therefore, his presence is established on the spot as he has received an injury in the course of occurrence. Nevertheless there is background of enmity between the parties and at this stage we must also note that Sardar appellant No,1, Muhammad Iqbal appellant No,2, Ghulam Rasul appellant No,3, Mahmood Ahmad appellant No,5 and Ehsanullah appellant No,6 were also injured in the course of. Occurrence. Learned counsel has pointed out to us that apparently in the background of enmity there are reasonable grounds to believe that the parties were involved in a sudden fight and consequently if this were so, the case would be covered under Exception 4 to section 300, P.P.C. He also pointed out to us that the parties have compromised and the affidavits to that effect of Asghar Ali P.W. And Ghulam Sarwar P.W. Have been placed on the record. Both of them are present in the Court and they made statements before us in C support of their affidavits. They are represented by Ch. Muhammad Anwar Bhinder Advocate who has also been instructed to make the same statement i.e, that the parties have 'entered into a compromise and have forgotten and forgiven one another. Compromise has also been effected between the appellants and Ghulam Mustafa, son of Muhammad Husain Kumhar deceased. Affidavit of Ghulam Mustafa has been placed on the record to that effect, dated 12-3-1985. He has also appeared before us and has supported his affidavit. We agree with learned counsel that the case appeared to be that of sudden fight. In that view of the matter, conviction under section 302, P.P.C. Of appellant No,1 and appellant No,2, namely, Sardar and Muhammad Iqbal appellants, who were themselves injured in the course of occurrence as well as D under section 148, P.P.C. Of all the appellants and under section 325/149, P.P.C. Of appellants No,5 and 6, namely, Mahmood Ahmad and Ehsanullah appellants, who both had also sustained injuries in the course of occurrence, as well as of all the other appellants under the aforesaid sections and sentences awarded thereunder whether were not proper and are accordingly set aside. Since the case of the appellants is covered by Exception 4 to section 300, P.P.C., each of them is E liable for his own act. Sardar and Muhammad Iqbal appellants No,1 and 2 are convicted under section 304, Part I, P.P.C. And sentenced to the term of imprisonment which they have already undergone in the light of the compromise between the parties. The fine in their case is remitted. Grievous injury caused to Irshadullah (not produced) is not specifically attributed to anyone. However, the other injuries received by Irshadullah (not produced) Javed Iqbal (not produced) and Asghar All (P.W.7), son of Khurshid Ahmad deceased, are simple in nature. Irshadullah and Javed lqbal injured have not been produced and since Irshadullah who has received grievous injury, has not been produced, it cannot be ascertained as to which of the appellants had caused the grievous injury to him.
However, since the injuries caused to Asghar Ali P.W. And others are simple in nature, we convict each of the appellants under section 323 P.P.C. And sentence him to imprisonment which he has already undergone. The sentence of fine in their case is remitted. All the appellants, except Sardar and Muhammad Iqbal, are on bail. Their bail bonds shall stand discharged. So far as Sardar and Muhammad Iqbal appellants are concerned, since they have already undergone the sentence awarded to them, they shall be released from jail forthwith if not wanted in any other case. In the light of what has been discussed above, Criminal Appeal No,544 of 1982 is accepted in the above terms.
' In the light of what has been discussed above, and particularly due to the compromise between the parties, State Criminal Appeal No,172 of 1983 and Criminal Revision No,211 of 1983 are dismissed as having been withdrawn. Similarly, private Criminal Revision No,800 of 1982 is also dismissed as having been withdrawn.
Appeal accepted