MUHAMMAD MUNIR KHAN, J.----This Criminal Appeal No. 5 of 1982 and the connected Murder Reference No. 22 of 1982 arises from the judgment of the learned Additional Sessions Judge, 'Sargodha, whereby he on 12-12-1981 convicted Pervez aged 18 years, Khalid aged 24 years, Mst.
Bashir Begum aged 65 years, Bati aged 20 years and Shera aged 18 years under section 148, P.P.C.
And section 302/149, P.P.C. For causing the death of Sultan Ahmed and under section 307/149, P.P.C.
For murderous assault on Sanaullah P W.8, Muhammad Malik P.W.12, Mst. Khurshid P.W.13, and Mst.
Sharifan (not produced) and sentenced them as under:- (i)Under section 148, P.P.C. Two years' R.I; (ii)under section 302/149, P.P.C. Pervez appellant to death and a fine of Rs. 2,000 in default thereof four months R.I. And the other appellants to imprisonment for life and a fine of Rs.2,000 each in default thereof four months' R.I. Each. It was also directed that each of the appellant shall pay Rs.2,000 as compensation to the legal heirs of the deceased, in default thereof four months R.I.
Each; (i.e)under section 307/149, P.P.C. Five years' R.I. Each and a fine of Rs. 500 in default thereof two months, R.I. Each; With the direction that the sentences shall run concurrently.
2. The occurrence took place on 25-9-1980 at 8.30 a.m. In Killa No. 17 of Square No. 37 near the Dera of Muhammad Sharif P.W. (given up) in the area of Chack No. 41/S.B. Of Police Station, Bhagtanwala.
The distance between the place of occurrence and the Police Station is 7 miles. The F.I.R. Exh.P.O.
Was lodged by Sana Ullah P.W.8 brother's grandson of the deceased, at 10 a.m. The same day and was recorded by Saleem Raza Shah S.H.O. P.W.15.
3. The parties are inter-related. Sultan Ahmed deceased was paternal uncle of Khalid and Pervez appellants. Mst. Bashir Begum appellant is the mother of Khalid and Pervez appellants. Bati and Shera appellants were the servants of Pervaiz and Khalid appellants, Nazir Ahmed father of Khalid and Pervaiz is brother of the grandfather of Sanaullah P.W.8. Mst. Khurshid Begum P.W. 13 is the widow of Sultan Ahmed. Muhammad Malik appellant is the first cousin of Sana Ullah P.W.
4. The motive as alleged by the prosecution was that Sultan Ahmed deceased owned eight Killas of land. He had no male issue. He was blessed with the only daughter namely Mst. Bushra. The appellants wanted the hand of Mst. Bushra in marriage with Pervaiz appellant but Sultan Ahmed deceased got her married with Muhammad Malik P.W. The appellants thus became annoyed.
5. As for the main occurrence, it has been stated that on 25-9-1980, at about 8.30 a.m. Sultan Ahmed deceased, Sana Ullah P.W.8, Muhammad Malik P.W.I2, Mst. Khurshid Begum P.W. 13 and Mst.
Sharifan (not produced) were going from their Dera towards their house in the Chak and when they reached near Killa No. 17 of Square No. 37 which was a State land, Khalid armed with hatchet, Pervez with dagger, Mst. Bashir Begum with hatchet, Bati and Shera armed with Sotas came in front of them. Khalid declared that he will teach, lesson to Sultan Ahmed for not having given Mst. Bushra in marriage to Pervaiz. Khalid then caught hold of Sultan Ahmed, fell him down and held him from his neck. Pervez inflicted dagger blow on his chest, Bati and Shera gave Sota blows on his shoulders. Pervaiz also caused injuries with his dagger to Muhammad 'Malik and Mst. Khurshid Begum. Mst. Bashir Begum appellant gave hatchet blows to Mat. Khurshid Begum P.W.13 and Mst.
Sharifan. Bati and Shera also injured Sana Ullah. Muhammad Malik and Khurshid Begum P.Ws and Mst. Sharifan. Khalid gave hatchet blow on the head of Muhammad Malik P.W. The alarm attracted Muhammad Sharif P.W. (given up) to the spot. Sultan Ahmed died on the spot.
6. On 25-9-1980 at 6-15 p.m. Dr. Shah Qutab Hamdani P.W.9 examined Sana Ullah P.W.8. He found four contusion marks and one abrasion on his shoulders, buttock, right thigh and forehead. The injuries were simple, caused by blunt weapon with 3 to 12 hours of the examination.
On 25-9-1980 Dr. Muhammad Saeed examined Mst. Khurshid Begum P.W.13 and found 17. Injuries on her person. Out of these injuries, injury No. 5 which was on front of left elbow joint was caused by sharp-edged weapon and the rest were caused 'with blunt' weapon within 9 to 12 hours of the examination. Out of 17 injuries, injury No. 9 which was, on the back of left hand was found grievous.
On, the same, day, the Doctor examined Muhammad Malik P.W.12 and found 10 injuries on his person. Injuries Nos. 4,6 and 8 which were on the right side of back of chest, left side of front-of chest and on the pack of left fore-arm, were caused by sharp-edged weapon. The rest of the injuries were caused with blunt weapon. Out of the --ten injuries found on him, injury No.4 i.e. Stabbed wound on the right side of the back of chest was declared grievous. The other injuries were simple.
On the same day, the Doctor examined Mst. Sharifan Bibi. He found four contused and one lacerated wound on her person. The injuries were caused by blunt weapon. Out of the five injuries, injury No. 1 which was, a lacerated wound on the left side of head was found grievous.
On the same day, the Doctor examined Khalid appellant and found following injuries on his person: (1)Lacerated wound 2 -- x -- c.m. Bone deep on the left side of head 7 c. m. From left ear.
(2)Stab wound 2 -- x 1 c.m. Cavity deep on right side of front of chest 21 c.m. From mid line.
(3)Contused swelling 8 x 6 c.m. On the outer side of the left forearm lower half Khalid appellant was under shock, restless, his B.P. Was low and pulse was weak. His condition was precarious and he could not move. Out of the three injuries, injury No. 2 was caused by sharp- edged weapon, rest with blunt weapon, within 5 to 7 hours of the examination. The doctor stated that 'Khalid appellant was brought in the hospital by his father and that Muhammad Malik P.W.12 Khurshid Begum P.W.13 and Mst. Sharifan were also examined as private patients. On 26-9-1980, at.
8 a.m. Dr. Muhammad Altaf Hussain, P.W.6 conducted post-mortem examination on the dead body of Sultan Ahmed deceased and found following injuries:- "(1)A stab wound 3 -- c.m x -- c.m x chest cavity deep on the front of chest in oblique direction 4 c.m. From the sterunum at central line; (2)A contusion 2 -- c.m. x 1 c .m. On the top of the right shoulder; (3)A contusion 4 c.m. x 1 c.m. On the top of left shoulder.
Stomach contained 1/2 ounce of digested food, large intestine having faecel matter and the urinary bladder was empty. All the other organs were healthy.
7. Khalid appellant was arrested from the hospital by Saleem Raza. Shah S.I. P.W.15 on 27-9-1980.
On, the same day he got recovered hatchet P. 3 by digging it out from Katcha floor of Kotha of his Dhari. It was taken into possession vide memo. P.C attested by Riaz Ahmed P.W.5, Khizar Hayat (not produced). The recovery was effected by Saleem Raza Shah P.W.15. Mst. Bashir Begum appellant was arrested on 6-10-1980 by Syed Abid Hussain Shah S.I. P W.10. On the same day, she led to the recovery of blood-stained hatchet P.4 from maize field near her Dera, which was taken into possession vide memo. P.D. Attested by the same witnesses. Pervaiz appellant was arrested on 7- 10-1980 by Syed Abid Hussain Shah S.I., P.W.10. On the same day, he led to the recovery of blood- stained dagger P.5 from his cattle shed which was taken into possession vide memo. P.E. Attested by the same witnesses: On the same day, Bati and Shera produced Dangs P.6 and P.7 before Syed Abid Hussain Shah S.I. Which were taken into possession vide memo. P.F. And P.G. Respectively. The recoveries of the weapons from Mst. Bashir Begum and Pervaiz appellants were effected by Syed Abid Hussain Shah P. W.10.
8. To prove its case, the prosecution examined as many as 15 witnesses, out of whom, Sana Ullah P.W.8, Muhammad Malik P.W.12 and Mst. Khurshid Begum P.W.13 gave the ocular account of the occurrence. They supported the main occurrence as detailed in para. 4 of the judgment. Sana Ullah P.W.8 also disclosed the background of the murder of Sultan Ahmed as alleged by the prosecution. Sana Ullah P.W.8 stated before the Court that Sultan Ahmed deceased owned 11 Killa of land. Mst. Bushra is the only issue of the deceased. The appellants wanted her to marry with Pervez but the deceased married her with Muhammad Malik P.W. 5/6 months before the occurrence. So far as the murder of Sultan Ahmad and injuries to the P.Ws. Are concerned, he stated that on the eventful time, he alongwith Sultan Ahmed deceased, Muhammad Malik P.W.12, Mst. Khurshid Begum P.W.13 and Mst. Sharifan P.W. (`not produced) were coming to their house in the Chak. When they reached, Khasra No. 17 of Square No. 37 which was a State land, the appellants variously armed came there. Khalid appellant said that he will teach lesson to the deceased for not giving Mst. Bushra in marriage to Pervez appellant. He then fell down Sultan Ahmed and held him from his neck. Pervez appellant stabbed Sultan Ahmed in his chest. Bati and Shera gave Lathi blows on the shoulders of Sultan Ahmed. Mst. Sharifan Begum (not produced) tried to intervene but Mst.
Bashir Begum gave her hatchet blows. Bati and Shera appellants also injured her with their Lathis.
When Muhammad Malik intervened, Khalid appellant caused injuries on his head with hatchet.
Pervez appellant also stabbed Muhammad. Malik P.W. With dagger. Bati and Shera gave him Lathi blows. Mst. Khurshid Begum tried to intervene whereupon Pervaiz appellant gave dagger blows on her person. Mst. Bashir Begum appellant also inflicted hatchet blows on her. Bati and Shera also gave Lathi blows to her. Bati and Shera appellants also injured him (Sana Ullah) with their Lathis.
The witness further stated that the alarm raised by them attracted Muhammad Sharif to the spot who entreated the appellant's and saved them from further harm. Muhammad Malik P.W. 12 and Mst. Khurshid Begum P.W. 13 supported the statement of Sana Ullah' P.W. 8 in .All material particulars: Dr. Muhammad Altaf Hussain P.W.6 conducted post-mortem examination on the body of Sultan' Ahmed, Dr. Muhammad Saeed P.W. 7 examined Khurshid Begum, Muhammad Malik, Sharifan Bibi and Khalid appellant. Dr. Shah Qutab Hamdani examined Sana Ullah P.W.
8. Riaz Ahmed P.W.
5. Abid Hussain Shah S.I. P.W. 10 and Saleem Raza S.I. P.W. 15, Abid Hussain Shah S.I.
P.W.10 and Saleem Raza S.I. P.W. 15 stated that hatchet P.3-, blood-stained hatchet P.4, blood- stained Dagger P.5 Dangs P.6 and P.7 were recovered from Khalid, Bashir Begum, Pervaiz, Bad and Shera appellants respectively. The Serologist report Exh. P.D.D reveals that blood stained hatchet P.4 recovered from Bashir Begum appellant and blood-stained dagger recovered from Pervez appellant were stained with human blood. The rest of the evidence is more or less of formal nature.
9. When examined under section 342, Cr.P.C. The appellants denied all the incriminating circumstances. Pervaiz and Bashir Begum appellants denied their presence on the spot and raised plea of false implication on account of enmity. While admitting their participation in the occurrence, Khalid, Bati and Shera appellants raised plea of self-defence. In reply to question No. 11 as to "why the case against him?" Khalid appellant stated:--- "I have no enmity with Sultan Ahmed. Muhammad Malik P.W. Got a false 'case of theft registered against my father through Muhammad, Sharif a few days before the present occurrence. On the night preceding the day of occurrence we caught Malik P.W. From near the water course and gave him beating to make Sharif withdraw theft case against my father. On the day of occurrence I had my turn op water. My Nakka is in Killa No. 17, I went To the Nakka. When Sultan Ahmad armed with hatchet and Malik P.W. Armed with a dagger came there alongwith Mst. Sharifan and Mst.
Khursheed P.Ws. They attacked me. Sultan Ahmad deceased gave me a blow from the wrong side of his hatchet on my hand while Mali k P. W. Gave me a dagger blow. Bati and Shera accused and their mother Mst. Nooran were present near the Dera and they came to my rescue, Bati and Shera were holding Sotas while Mst. Nooran was holding sickle. Mst. Sharifan and Khurshid also attacked me and in my defence Bati, Shera and Mst. Nooran gave injuries to Sultan Ahmad, Malik, Sharifan and Mst. Khursheed Bibi. My brother Pervaiz and my mother Mst. Bashir Begum were not 'present at the spot."
Shera appellant stated that on the day of occurrence, he alongwith his brother Bati and mother Mst. Nooran were present in the maize field. They heard an alarm from near the Nakka, and found Khalid appellant being attacked by Sultan Ahmed deceased, Malik, Sharifan and Khurshid P.Ws.
Sultan Ahmed was armed with hatchet and Malik was holding a dagger. They gave injuries to Khalid so he, his brother Bati, with small sticks and their mother Mst. Nooran with a sickel gave injuries to Sultan Ahmed, Malik, Sharifan and Mst. Khurshid Bibi in order to save Khalid co-accused.
Bati adopted the statement of Shera appellant. In defence, no witness was produced.
10. The learned counsel for the appellants contended that the prosecution- case was false and that Bati and Shera had caused the death of Sultan Ahmed and injuries to the three prosecution witnesses and Mst. Sharifan P.W. (not produced) in exercise of the right of the defence of Khalid co- accused who was under the attack of the deceased and the injured P.Ws. He argued that the motive alleged by the prosecution was false inasmuch as Sultan did not own 8 Killas of land as stated in the F.I.R. And that Muhammad Malik P W: 12 with whom Mst. Bushra was married has not supported the motive; that injuries on the person of Khahd were suppressed by the eye-witnesses and that there was at least reasonable possibility of the defence version being true. Conversely, the learned counsel for the State supported the judgment of the trial Court. He maintained that the eye-witnesses have given the true account of the occurrence and that the defence version was totally false.
11. We have considered the arguments addressed by the learned counsel for the parties with care.
From the state of affairs given if the early part of the judgment, it is very much obvious that the time of occurrence, place of occurrence, presence of Sultan Ahmed deceased, Muhammad Malik P.W.12, Khurshid. Begum P.W.13, Mst. Sharifan (not produced), Khalid, Bati and Shera the three appellants and the receiving of injuries by the deceased, Muhammad Malik, Mst. Sharifan, Mst.
Khurshid Begum P.Ws. And Khalid appellant during the occurrence are the admitted facts of the case. The appellants did not admit the present of Sana Ullah P.W.8 on the spot at the time of occurrence, but by the facts of injuries on his person, his presence and participation in occurrence is very much established. The real controversy between parties is with regard to the background of the attack/fight, origin and the manner in which the occurrence took place. On careful examination of the evidence, circumstance, brought on record and the statements of the appellants, we feel that the parties have not stated the whole truth, mere particularly about, the motive and origin of the attack. The motive as alleged in the F.I.R. Was that Sultan Ahmed owned eight Acres of land. He had no male issue. Mst. Bushra was his only daughter. In order to have eight Acres of his land, the appellants wanted hand of his daughter for Pervaiz appellant. Since. Sultan gave Mst. Bushra in marriage to Muhammad Malik, the appellants became annoyed and opened determined attack on the deceased. At the trial Sana Ullah P.W.8. Stated that Sultan Ahmed owned only -- KILLA of land Abdul Malik P.W.12 with whom Mst. Bushra was married, did not state anything about the motive in his examination in chief. In cross examination he stated that since his early childhood he was engaged With Mst. Bushra and used to live in the house of Sultan Ahmed. The appellants never quarrelled with him on account of his engagement with Mst. Bushra. Since his early childhood, he had beep going to his land and had been irrigating the same at odd hours of day and night without the appellants even having a dispute with him. On the other hand, the case of Khalid appellant has disclosed in his statement under section 342, Cr.P.C. And suggestions to Sana Ullah P.W.8, was that at the time of occurrence, since it was the turn of his water, so he (Khalid) was present near the Nakka when Sultan Ahmad deceased armed with hatchet and Malik R.W. Armed with dagger came there alongwith Mst. Sharifan and Mst. Khurshid. Begum P.Ws. And that Sana Ullah, Pervaiz and Bashir Ahmad appellants were not present on the spot. The deceased and others opened the attack on him, so Bati, Shera and Mst. Nooran in exercise of the right of self-defence of persons caused injuries to them, This version on the face of it appears to be devoid of truth. It has been elicited through cross-examination on Sana Ullah P.W.8 that at 8.30 a.m. It was 'Sharif's turn of water and that the turn of water of Nazir, the father of Khalid was to start at 9.30 a.m. That being the position, it cannot be said that the appellant was present .At the place of occurrence innocently.
There is yet another circumstance to belie the aggression and opening of, attack by deceased party on Khalid appellant as asserted by the defence. Had the complainant party come with determination and preparation to cause harm to Khalid who was by that time all alone near the Nakka, the damage to Khalid would have been much more and Bati, Shera and Mst. Nooran could not have remained unhurt. The conduct of deceased of having associated the ladies and bringing them alongwith him in order to attack Khalid also runs counter to the natural probabilities. The presence of the ladies of the parties on the spot shows that the occurrence did not originate in the manner as alleged by either of the parties. It is thus crystal clear that both the parties have not come out' with true story. The parties have told incomplete tales and have tried to minimise the part played by them. In this view of the matter, we propose to follow the guidelines given by the Honourable Supreme Court in cases Syed Ali Bepari v. Nibaran Mollah and others reported as PLD 1962 SC 502, Abdul Rehman's v. Gadai Khan and 3 others reported as 1972 SCMR 676, Towab Khan v. State reported as PL D 1970 SC 18 and Inayat Ullah and another v. The State reported as PLD 1966 (W.P.) Lah. 8 and proceed to draw our own inference flowing from evidence and circumstances appearing in the case. Since there is no satisfactory evidence of the background of the occurrence; that both sides received injuries, and that due to the incident of the night preceding the day of occurrence wherein Muhammad Malik P.W. Way beaten by Khalid appellant; the son of Nazir, the state of relations between the parties was such that both the parties could fight with each other and that a very trivial incident could bring them into conflict, therefore, it would be reasonable to infer that each party anticipating resistance from the other were determined to have a trial strength and that each party knowingly and deliberately took upon itself the risk of the encounter and as such it was a free fight between the parties wherein Sultan Ahmad lost his life, Khalid appellant received serious injuries and the four P.Ws. Were injured so right of self-defence was not available to either of the parties. It is by now well-settled that in case of free fight, each participant would be responsible for his individual act and section 149, P.P.C. Would not be attracted.
12. This brings us to the nature of the offence committed by each of the appellants. Sultan Ahmad died as a result of injury No. 1 caused by Pervaiz appellant. So following the case, Abdul Rehman's v.
Gadai (sic) them guilty under section 323, P.P.C. On five counts. Their conviction under section 307, P.P.C. Is not sustainable.
13. Coming to the question of sentence. Since the origin of the attack is shrouded in mystery, therefore, we feel inclined to alter the sentence of death of Pervaiz appellant to imprisonment for life and a B fine of Rs.2,000 in default thereof four months, R.I. It is also directed that he shall pay Rs.2,000 as compensation to the legal heirs of the deceased in default thereof further S.I. For four months. Perviz is also sentenced to five years' R.I for causing grievous injury to Muhammad Malik P.W. He is also sentenced to one year's R.I. For causing simple injury to Khurshid Begum. The sentences awarded to him shall run concurrently. Khalid, Bati and Shera appellants are in the jail since their conviction on 12-12-1981, so the sentence already undergone by them would meet the case. They shall be released forthwith. As for Mst. Bashir Begum, she being an old lady of 67 years by now, we do not feel inclined to send her back to jail. She remained in jail for more than a year, therefore, the sentence already undergone by her is sufficient to meet the ends of justice.
A.E. Sentence of death not confirmed.