Abdul Majid son of Jamal Din, aged 70, armed with Sots, (2) Abdul Hamid son of Jamal Din, brother of convict No. 1, aged Hi armed with hatchet, (3) Muhammad Jamil son of Abdul Majid (convict No. 1), aged 26, armed with Chhuri, (4) Muhammad Khalid alias Khalid Umar son of Abdul Majid (convict No. 1) aged 23, armed with Sots, (5) Abdul Razzak son of Muhammad Sarwar, nephew of convicts Nos. 1 and 2, aged 23, armed with Sots, (6) Mehram son of Abdul Hamid (convict No. 2), aged 23, armed with Chhuri (since these convicts are interrelated and members of the same family, they, have filed joint Criminal Appeal No. 668 of 1884), and (7) Bhulla son of Muhammad Tufail, aged 24, armed with hatchet (who is stated to be from their Baradari) has filed a separate appeal, namely, Criminal Appeal No. 669 of 1984. Convicts Nos. 1, 2, 3, 6 and 7 have been convicted under section 304, P.P.C. For causing the death of Nawab Din deceased, aged 40/45, and each of them has been sentenced to Life, imprisonment whereas convicts Nos. 4 and 5 have been convicted under section 307 P.P.C. For murderous assault on Muhammad Aslam (P.W. 6) and each of them has been sentenced to seven years' rigorous imprisonment vide judgment, dated 23-9- 1984 of the Additional Sessions Judge, Gujranwala. Since the aforesaid two appeals filed by the convicts are connected, these are being taken up together and disposed of by this judgment.
2. The occurrence took place on 26-6-1983 at 12-00 noon in the house of the deceased in village Durgapur at a distance of four miles from Police Station Kamoke District Gujranwala. F.I.R. (Exh. P.J.) was lodged by Muhammad Aslam (P.W. 6), injured brother of the deceased at 2-30 p. m. On the same day and it was recorded by Muhammad Akbar A.S.I. (P.W. 10) at the police station.
3. The motive for crime as stated in the F.I.R. Is that a day before the occurrence Muhammad Aslam (P.W. 6) went to the shop of Khalil Ahmad one of the sons of Abdul Hamid, appellant No. 2, to purchase ice. But he refused to sell ice to Muhammad Aslam P.W. Muhammad Aslam P.W. Insisted that since he had a block of ice he should sell it to him. On this abuses were exchanged and an altercation took place between them. In the meantime Muhammad Sarwar uncle of Khalil Ahmad and Abdul Hamid, appellant No. 2, on the one side and Muhammad Malik (not produced), Muhammad Akbar, another-brother of the deceased (not produced) alongwith the deceased on the other side, came there and separated them. It is stated that Abdul Hamid, appellant No. 2, etc. Before leaving had threatened that as they had abused them at their shop, 'they would teach them a lesson. The occurrence followed on the next day.
4. The prosecution has produced two eye-witnesses of the occurrence, namely, Muhammad Aslam (P.W. 6) injured brother of the deceased, and Mst. Bilqees Begum (P.W. 7) widow of the deceased.
Kamal Din, father of the deceased, was cited as an eye-witness but has been given up as unnecessary. Similarly, Muhammad Akbar, another brother of the deceased, had been also cited as an eye-witness but was given up as unnecessary.
5. In the F.I.R. The occurrence is reported to have taken place in the following manner. In the background of the previous occurrence, on the fateful day while Muhammad Aslam P.W. Was proceeding to fix the water-tape of one Rehmat and while he passed by the house of Abdul. Majid, appellant No. 1, he suddenly noticed all the appellants armed as described above, sitting there and as soon as they saw him, they rushed out towards him raising Lalkaras. Muhammad Aslam P.W. In order to save his life turned back and started running towards his house. AS he was running in the street he also saw his brother, the deceased, going back td his house after giving milk to someone and he also started running alongwith him towards their house. The appellants were chasing them and consequently, they entered into the courtyard of the house of the complainant party.
Muhammad Aslam P.W. As well as the deceased in order to save their lives asconded on the roof of their house. Abdul Majid and Abdul Hamid, appellants Nos. 1 and 2 raised a Lalkara to the effect that they should be followed up on the roof and they should be finished. On this all the appellants came behind them on the roof and attacked them. Abdul Majid appellant gave a blow with his Sota which fell on the left wrist of the deceased. Then Abdul Hamid appellant gave a blow with tile reverse side of his hatchet which fell on the left thigh of the deceased. Then Muhammad Jamil appellant gave a Chhuri blow to the deceased which fell on his left waist. Thereafter, Mehram appellant tried to give a Chhuri blow to the deceased who held the blade of the Chhuri in his hand to ward of the blow and thus injured his first finger. In the meantime Bhulla appellant gave a hatchet blow which fell on the head of the deceased causing a deep wound and as a result the deceased fell down on the ground and died on the spot. In the meantime Abdul Majid appellant kicked Muhammad Aslam P.W. On his testicles and thereafter gave a Sota blow to him which fell on the back side of his head. Then Muhammad Khalid alias Khalid Umar appellant and Abdul Razzak appellant gave one Sota blow each to him which fell on his right temple and left waist. Thereafter Mehram appellant gave tooth-bite to him on his wrist and also gave him a Chhuri blow which fell on his right thigh. He was about to give him the second Chhuri blow but Muhammad Aslam P.W.
Held the Chhuri blade in both of his hands and as a result fingers of both of his hands were injured.
In the scuffle Abdul Hamid and Mehram appellants also received injuries which Muhammad Aslam P.W. Had caused to them with Sota that he had snatched from the hands of Abdul Majid appellant.
He had caused injuries to them in order to save his and his brother's life. In the meantime due to alarm Mst. Bilqees Begum (P.W. 7) were of the deceased, Kamal Din, father (not produced) and Muhammad Akbar, brother of the deceased (not produced) who were present in the house arrived at the scene of crime and witnessed the occurrence. Due to the alarm other people of the village had also been attracted to the scene of crime but the appellants managed to escape. Leaving behind Kamal Din and Mat. Bilqees Begum P.W. To guard the dead body of the deceased, Muhammad Aslam P.W. Proceeded to lodge the report at the police station in the company of his brother Muhammad Akbar (not produced).
6. All the appellants were arrested on 15-7-1983 by Muhammad Akbar A.S.I. (P.W. 10).
7. At the instance of Abdul Majid appellant was recovered Sota (Exh. P. 7), not blood-stained, and taken into possession vide Memo. Exh. P.H. At the instance of Abdul Hamid appellant was recovered hatchet (Exh. P.4) not blood-stained, and taken into possession vide Memo. Exh. P.E. At the instance of Muhammad Jamil appellant was recovered Chhuri Exh. P. 10 (blood-stained) and taken into possession vide memo. Exh. P.B. At the instance of Muhammad Khalid alias Khalid Umar appellant was recovered Sota Exh. P. 5 (not blood stained) and taken into possession vide Memo. Exh. P.F. At the instance of Abdul Razzak was recovered Sota Exh. P. 6 (not blood-stained) and taken into possession vide Memo. Exh. P. G. At the instance of Mehram appellant Chhuri Exh. P. 9 (blood- stained) was recovered and taken into possession vide Memo. Exh. P.C. At the instance of Bhulla appellant hatchet Exh. P. 8 (blood stained) was recovered and taken into possession vide Memo.
Exh. P.D. All these recoveries were effected on 20-7-1983 and attesting witnesses in all cases of recovery are the same, namely, Karam Din P.W. 4, Abdul Ghani (not produced) and Muhammad Akbar A.S.I. (P.W. 10). According to the report of the Serologist (Exh. P.Y.), Chhuri (Exh. P. 10) recovered at the instance of Muhammad Jamil appellant, Chhuri (Exh. P. 9) recovered of the instance of Mehram appellant and hatchet (Exh. P. 8) recovered at the instance of Bhulla appellant were found to be stained with human blood.
8. The defence version as provided in the statement of Abdul Hamid appellant is to the effect that the complainant party had borne a grudge against the accused party due to the incident of the previous day (the motive as provided by the prosecution). According to his statement, on the fateful day Muhammad Aslam P.W. Armed with hatchet alongwith the deceased who was armed with Chhuri, came in front of the house of Abdul Hamid appellant and started hurling abuses as well as raising Lalkaras. Due to their provocation the accused party came out and a scuffle started between Muhammad Aslam P.W. And the deceased on the one side and Abdul Hamid appellant as well as Mehram appellant on-the other side. During the course of the scuffle, the deceased felled Abdul Hamid appellant down on the ground and wanted to kill him with the Chhuri with which he was armed, while Muhammad Aslam P.W. Tried to give hatchet blow which inadvertently- fell on the head of his brother, the deceased. Abdul Hamid appellant and Mehram appellant received injuries at the hands of Muhammad Aslam P.W. And the deceased. These injuries had been intentionally suppressed by the prosecution. Both of them were formally arrested but their arrest was deliberately kept in abeyance. They were in police custody right from the day of occurrence and they were not in a position to move about due to their injuries. The occurrence took place in front of the house of Abdul Hamid appellant and not on the roof top of the house of Muhammad Aslam complainant P.W.
Mehram appellant also gave the same statement but the rest of the appellants stated that they were not present and they did not participate in the occurrence. Thus the, defence version is that in the scuffle only two members of the accused party, namely, Abdul Hamid appellant and Mehram appellant had participated and that it was a fight between them on the one side and Muhammad Aslam P.W. As well as the deceased on the other side. The defence version also is to the effect that the entire incident had taken place in front of the house of Abdul Hamid appellant and not on the roof top of the house of complainant party. It is stated in the F.I.R. By Muhammad Aslam P.W. That he had snatched the Sota from Abdul Majid appellant and had caused injuries in the exercise of his right of self-defence of himself as well of his brother, the deceased, to Abdul Hamid and Mehram appellants. But at the trial stage this was denied. However, learned counsel has pointed out that although Abdul Hamid and Mehram appellants, as stated by Muhammad Aslam P.W. In the F.I.R., had sustained injuries in the course of the occurrence at the hands of the complainant side, they were not got medically examined in this case by the police.
9. Dr. Anjum Javed (P.W. 8) conducted post-mortem examination on the dead body of the deceased on 27-6-1983 at 1-50 p.m. And found on his person the following injuries:-- (1)Incised wound on the left side of the head which proved fatal and has been attributed to Bhulla appellant; (2)incised wound on the left lumbar region simple in nature attributed to Jamil appellant, (3)contusion on the left wrist-joint attributed to Abdul Maud appellant and simple in nature, (4)Abrasion on left knee-cap, (5)abrasion on right knee-cap, (6)abrasion on left leg middle part, possibly attributed to Abdul Hamid appellant and simple in nature.
(7)abrasion on right index finger possibly attributed to Mehram appellant and simple in nature, and (8)abraded swelling on right scrotum.
Dr. Javed Iqbal had medically examined Muhammad Aslam P.W. And his medico-legal report is Exh. PN. But since the said doctor had gone abroad, he could not be produced but his report was proved by Sabir Hussain Dispenser (P.W. 12). According to Exh. P.N. Muhammad Aslam P. W. Had received in all 12 simple injuries at the hands of the accused party out of which 3 injuries were incised and 9 had been caused with blunt weapon. All the injuries were simple in nature.
10. I have heard learned counsel for the parties and carefully perused the record with their assistance. There is no other background of previous enmity between the parties except the incident which took place a day before the present occurrence which appears to be the motive in this case. The motive version is that an altercation had taken place between Muhammad Aslam P.W. And Khaki Ahmad i.e. Son of Abdul Hamid appellant but they were separated by Muhammad Sarwar, uncle of Khalil Ahmad and Abdul Hamid, appellant on one side and Muhammad Malik, Muhammad Akbar as well as the deceased on the other side. Now the defence version is that Muhammad Aslam P.W. As well as the deceased both armed came to the house of the accused party and started abusing them as well as raising Lalkaras. Due to their provocation only two of the members of the accused party namely, Abdul Hamid and Mehram appellants came out and a fight started amongst them. In other words, according to the defence version only two members of the accused party had participated in the occurrence namely, Abdul Hamid and Mehram appellants because they are stated to have been injured in the course of the occurrence at the hands of the complainant side which according to them consisted of the deceased and Muhammad Aslam P.W. It is stated that Muhammad Aslam P.W. While recording the F.I.R. Had clearly stated that he had snatched the Sota which was carried by Abdul Majid appellant and therewith he caused injuries to Abdul Hamid and Mehram appellants but he resiled from the statement subsequently and at the trial stage stated that he had not caused any injuries to them.
However, both of them had not been medically examined even by the police. But there is statement of Sons (P.W. 9) to the effect that he saw both of them injured in the course of the present occurrence. The defence version also is to the effect that the incident had taken place in front of the house of the accused party and not on the roof top of the complainant side. Here this defence version is not being supported by the evidence on the record because blood-stained earth had been picked up from the roof top of the house of the complainant party. It is, therefore, probable that some kind of scuffle may have commenced from the front of the house of the accused party but they might have chased Muhammad Aslam P.W. As well as the deceased when they ran back to their house and it was in this way that they came inside the courtyard of the house of the complainant party who in order to escape climbed up on the roof and then they were followed by the accused party there. What appears from the record is that there is no background of any previous enmity except the incident which had taken place a day before and that in the background of that incident some kind of altercation took place on the following day resulting in the present occurrence which was apparently a fight in which two members of the accused party namely, Abdul Hamid and Mehram appellants sustained injuries at the hands of the complainant side and on the complainant side Muhammad Aslam P.W. And the deceased sustained injuries at the hands of the accused party. All the injuries A in this case are simple in nature except the one sustained by the deceased on the head and which is specifically attributed to Bhulla appellant. It is probably in this background that the trial Court has proceeded to convict and sentence some of the appellants under section 304, P. P. C. And the others under section 307, P.P.C. In my view since it appears to be a fight, each and every appellant should be) held responsible for his own act and the injury which is attributed to him. If I were to examine the case from that standpoint, then the result would be that all the' injuries sustained by Muhammad Aslam P.W. As well as the deceased, except the one on head clearly attributed to Bhulla appellant were simple in nature. In other words, apart from Bhulla appellant, Abdul Majid, Abdul Hamid, Jamil, Muhammad Khalid alias Khalid Umar, Abdul Razzak and Mehram appellants had only been attributed simple injuries. Obviously if this point of view is adopted, then there was no justification on the part of the trial Court to convict Muhammad Khalid and Abdul Razzak appellants under section 307, P.P. C. For murderous assault on Muhammad Aslam P.W. And to sentence them to seven years' rigorous imprisonment each. In the light of this reasoning the conviction as well as sentence awarded to Muhammad Khalid alias Khalid Umar and Abdul Razzak appellants are hereby set aside. According to the version given by Muhammad Aslam P.W. Injuries had been caused to him at the hands of Abdul Majid, Muhammad Khalid alias Khalid Umar, Abdul Razzak and Mehram appellants. All these injuries are simple in nature. Therefore, each of them i.e. Abdul Majid, Muhammad Khalid alias Khalid Umar and Abdul Razzak appellants could and the most be convicted under section 323, P.P.C. And Mehram appellant who could at the most be convicted under section 324, P.P.C. I am told that they had been behind the bars ever since they were arrested in connection with this case i.e. 15-7-1983 and they had not been admitted to bail. In that view of the matter, instead I convict Abdul Majid, Muhammad Khalid alias Khalid Umar and Abdul Razzak appellants under section 323, P.P.C. For causing simple injuries to Muhammad Aslam P.W. And sentence them to the terms of imprisonment which they have already undergone. Similarly, I convict Mehram appellant under section 324, P.P.C. For having caused injuries to Muhammad Aslam P.W. And sentence him to the term of imprisonment which he has already undergone. Now according to the prosecution case, the deceased in the instant case, was given injuries by Abdul Majid, Abdul Hamid, Jamil and Mehram appellants. These injuries on the person of the deceased are simple in nature and out of them only one attributed to Jamil appellant has been caused with a sharp-edged weapon. Since each of them is liable for his own act, in their case it was not proper to convict and sentence them under section 304, P.P.C. The result is that I set aside their conviction as well sentence awarded to them under section 304, P.P.C. But instead convict Abdul Majid and Abdul Hamid appellants under section 323, P.P.C. And sentence each of them to the term of imprisonment which he has already undergone. Similarly, instead, convict Jamil appellant under section 324, P.P.C. And sentence him to the term of imprisonment which he has already undergone. The result is that since Abdul Majid Abdul Hamid. Muhammad Khalid alias Khalid Umar, Abdul Razzak and Mehram appellants have already undergone the sentences which has been awarded to them in this case, they shall be released from jail forthwith if not wanted in any other case. The Criminal Appeal No. 668 of 1984, is accepted to this extent.
Now I take up the appeal of Bhulla appellant Criminal Appeal No. 669 of 1984 who alone is stated to have: caused the fatal injury on the head of the deceased. In my view his conviction under section 304, Part-I, P.P.C. Was quite proper and is accordingly maintained. So far as the awarding of sentence to him under section 304, Part-I, P.P.C is concerned, learned counsel has relied upon Thiraj, etc. v. The State 1976 P Cr. L J 1430 in which in similar circumstances the main accused was sentenced to ten years' rigorous imprisonment. Reliance was also placed on Alam Sher, etc. v. The State 1968 SCMR 949. In that case the sentence awarded was five years' rigorous imprisonment.
In Sai Khan v. Umar Hayat, etc. 1973 SCMR 136 the sentence awarded was five years' rigorous imprisonment which was not interfered with by the Supreme Court. I have considered the arguments of learned counsel in respect of the quantum of sentence to be awarded to Bhulla appellant in the instant case.. In my view while maintaining the conviction of Bhulla appellant under section 304, Part I, P.P.C. The sentence of life imprisonment awarded to him by the trial Court should be reduced. I order accordingly and reduce his sentence from that of life imprisonment to ten years rigorous imprisonment. Since he has remained behind the bars from the day of his arrest, the jail authorities while computing his sentence should grant him the benefit of the provisions of section 382-B, Cr.P.C. His appeal is accepted to this extent.