Manzoor son of Allah Ditta, aged 45 years, Muhammad Aslam son of Muhammad Iqbal, aged 20 years, Muhammad Ashiq son of Muhammad Iqbal, aged 25 years, Tariq son of Muhammad Iqbal, aged 15 years and Muhammad Iqbal son of Allah Ditta, aged 59 years were tried under sections 148 and 302 and 307 read with section 149, P.P.C. For forming an unlawful assembly and in prosecution of common object thereof committing the murder of Bashir Ahmad and murderous assault on Muhammad Hamid by the learned. Additional Sessions Judge, Gujranwala who vide his judgment, dated 6th of November, 1984 acquitted Tariq and Muhammad Iqbal giving them benefit of doubt but convicted Manzoor, Muhammad Aslam and Muhammad Ashiq under section 304, Part. I read with section 34, P.P.C. And sentenced them each to undergo R.I. For ten years and to pay a fine of Rs.2,000 and in default to suffer R.I. For a further period of one year. It was further directed that half of the fine, if realized, would be paid to the heirs of the deceased as compensation. The convicts have filed an appeal against their conviction and sentence. Muhammad Hamid, complainant also has filed a revision petition against the acquittal of Tariq and Muhammad Iqbal. This judgment shall dispose of the appeal as well as the revision petition.
2. The occurrence is alleged to have taken place on 20th of June, 1983 at 6 p.m. On the road side outside the contiguous houses of the parties situated at Tal Lambanwala, opposite Patrol Pump Ghulam Dastgir, about three Furlongs away from Police Station, Kotwali, Gujranwala. It was reported vide F.I.R. Exh.P.A. On the same date at 6-45 p.m. By Muhammad Hamid P.W.7 at Civil Hospital, Gujranwala to S.I. Nazir Ahmad P.W.9, S.H.O. Police Station Kotwali who went there on receipt of an information about the occurrence. On the basis of this F.I.R. a case under sections 148 and 302/307/324/149, P.P.C. Was registered at Police Station Kotwali, Gujranwala on the same date at 7-15 p. m. Vide formal F.I.R. Exh.P.A./1 drawn by A.S.I. Muhammad Hussian P.W.1.
3. Muhammad Aslam, Muhammad Ashiq, appellants and Tariq, their brother and co-accused, are the sons of Muhammad Iqbal, their co-accused while Manzoor Hussain appellant is the brother of Muhammad Iqbal. The prosecution case briefly is that Mst. Barkat Bibi, paternal aunt of the deceased was married to Noor Mohammad, brother of Muhammad Iqbal, co-accused and was living in their house adjacent to the house of the deceased. On 20th of June, 1983, Mst. Barkat Bibi after a beating was turned out from the conjugal domicile and she came over to the house of the deceased. The deceased and Muhammad Hamid P.W., his brother complained against it to Muhammad Iqbal who became annoyed. On the same date at 6 p.m. When the deceased was standing in the courtyard of his house. Manzoor appellant flung a brick-bat on him from the courtyard of his adjoining house. Muhammad Hamid P.W, forbade Manzoor appellant but he abused and threatening that he would teach a lesson to the complainant party for keeping Mst.
Barkat Bibi in their house, went out on the road. Meanwhile Shaukat P.W.6, cousin of Muhammad Hamid P.W.7 and the deceased, came there. Manzoor appellant started grappling with him.
Muhammad Hamid P.W. And the deceased rushed and separated them. Manzoor appellant went inside his 'house. Muhammad Hamid and Shaukat P.Ws. And the deceased kept standing there talking with each other. After a short while Manzoor, Ashiq and Aslam, appellants armed with Chhuris and Iqbal and Tariq. Their co-accused, empty-handed came out of their house. On the Lalkara of Muhammad Iqbal, Tariq caught hold of the deceased from behind and Ashiq appellant gave him a Chhuri blow hitting him in the chest. Aslam appellant also inflicted a blow with his Chhuri on the deceased causing him an injury below his right ear. The deceased fell down.
Muhammad Hamid P.W. Stepped forward when Manzoor appellant inflicted a Chhuri blow on his right wrist. Her aimed another blow on Hamid but he retreating escaped further injury. Muhammad Iqbal co-accused continued raising Lalkaras. Hamid and Shaukat P.Ws. In self-defence pelted brick-bats on the assailants as a result whereof Manzoor and Aslam appellants sustained minor injuries. Besides Hamid and Shaukat P.Ws. Sir Din also saw the occurrence but he was given up at the trial on the ground of illness. After the attack, the appellants and their co-accused decamped with their weapons. The deceased was carried in an injured condition to the Civil Hospital, Gujranwala where on arrival, he succumbed to the injuries.
4. S.I. Nazir Ahmad P.W.9 after recording the F.I.R. Prepared inquest report Exh.P.M. And injury statement Exh.P.N. In respect of the deceased and despatched his dead body to the mortuary for post-mortem examination. He arrested the appellants and their co-accused on 21st of June, 1983.
Manzoor and Aslam appellants were found injured. He prepared injury statements Exh.P.O. In respect of Manzoor and Exh.P.Q. In respect of Muhammad Aslam end got them medically examined. On 23rd of June, 1983, Ashiq, Aslam and Manzoor appellants got recovered blood- stained Chhuris P.5, P.6 and P.7 respectively and they were taken into possession and sealed vide memo. P.J., P.K. And P.L. In the presence of Noor Din P.W.8 and Muhammad Aslam (given up at the trial as having been won over) who attested the memoranda. These Chhuris according to the report Exh.P.S. Of the Chemical Examiner and report Exh.P.T. Of the Serologist, were stained with human blood. After completion of the investigation, the appellants and their co-accused were challaned.
5. On 21st of June, 1983 at 11 a.m. Dr. Anjum Javid P.W.4, the then Medical Officer, D.H.Q. Hospital, Gujranwala conducted autopsy on the dead body of the deceased and found the following injuries:-- (1)An incised wound 4 x 2 c.m. Going deep front of left chest about 8 c.m. Above left nipple, 5 c. m.
From mid line and 5 c.m. Below clavical.
(2)Incised wound 1 c. m. x -- c. m. x skin deep right side of face just below right ear alongwith tail 5 c.m. x 1 m.m. Right side of neck.
6. On 20th of June, 1983 at 6-50 p.m. Dr. Shahnawaz P.W.2 Medical Officer, D.H.Q., Hospital, Gujranwala medically examined Hamid P.W. And found a superficial cut 5 x 1 c.m. Innerside middle part of right forearm in transverse direction. This injury was simple and had been caused by a sharp-edged weapon. Exh P.B. Is the medico-legal report. In his cross-examination the Medical Officer said that the possibility of the injury which was not even skin deep being self-suffered could not be ruled out.
7. On 21st of June, 1983 Dr. Anjum Javid P.W.4 at 8 a.m. Medically examined Manzoor appellant and found on his person the following injuries: (1)A braded swelling 5 c.m. x 4 c.m. Right side of head about 10 c.m. From right ear.
(2)Abrasion 9 c.m. x 6 c.m. Front of left elbow joint and lower part of left upper arm.
Both the injuries were declared as simply having been caused by blunt weapon. The probable duration of the injuries was 10 to 16 hours. Exh.P.F. Is the medico-legal report.
8. The above Medical Officer on the same date at 8-05 a.m. Medically examined Muhammad Aslam, appellant and found the following injuries on his person: (1)Lacerated wound 2-- x -- c.m. x scalp deep right side of head about 9 c.m. From right ear.
(2)Complained of pain back of right chest middle part.
The injuries were simple having been caused by blunt weapon. In his case also the duration of the injuries was 10 to 16 hours. Exh.P.E. Is the medico-legal report.
9. The appellants and their co-accused pleaded not guilty to the charge framed against them' under sections 148 and 302 and 307 read with section 149, P.P.C. When examined under section 342, Cr.P.C. They while admitting their relationship inter se, denied the prosecution case and the recoveries attributed to them. According to Ashiq appellant and Tariq and Muhammad Iqbal, his co-accused, they were not present at the spot at the time of occurrence and they had been falsely implicated in the case. Muhammad Aslam, appellant raised the following plea: "Hamid P. W. And Bashir deceased were belabouring my uncle Manzoor with Sotas. I tried to separate them but they also started giving me beating. Upon this I in self-defence injured Bashir deceased. Hameed P.W. In connivance with the police after receiving self-suffered injury involved me in this case as well as my brothers, my father and my uncle."
Similar plea was set up by Manzoor appellant. It runs as under:--- "Due to women-folk Abdul Hameed P.W. And his brother Bashir deceased started belabouring me.
Upon which my nephew Aslam co-accused came there and he tried to separate us but they started belabouring him. Aslam co-accused in self-defence injured Bashir deceased but Hameed P.W. On self-inflicted injury and in connivance with the police involved us in this case."
No evidence in defence was adduced by the appellants and their co-accused.
10. The prosecution in support of its case examined nine witnesses including Shaukat Ali P.W.6 and Muhammad Hamid P.W.7 who deposed to the occurrence as well as the motive therefore. Hamid P.W. Stated in his cross-examination that ten minutes before the occurrence Mst. Barkat Bibi his paternal-aunt came over to his house after she was turned out by the accused from their house after a beating. She was married to Noor Muhammad and was living with him in the house of Manzoor and Iqbal, accused, his brothers. She did not tell the reason for which she was beaten and turned out from the conjugal domicile. Prior to that she had never been beaten or turned out from the house. The houses of the parties were contiguous with a partition wall, only four feet high, He and the deceased in the company of Siraj P.W. Their uncle, went to the house of the accused to enquire about the dispute house but e. Manzoor and Iqbal abused them. They returned to their.
They were still standing in the courtyard of their house when three or four minutes later Manzoor accused threw a brick-bat hitting the deceased. Women-folk of both the parties started verbal altercation from their houses. Manzoor accused came outside his house and grappled with Shaukat P.W.6. He and the deceased also came outside their house and separated them. Manzoor accused went inside his house and after three or four minutes all the accused came out of their house. It was then and there that the fight ensued. The appellants attacked with Chhuris while the- deceased and the complainant party threw brick-bats on them.
11. The veracity of the above version has not been seriously assailed by the learned counsel for the appellants. Otherwise also the version is corroborated by the recovery of blood-stained Chhuris P.5, P.6, A P.7 at the instance of Ashiq, Aslam and Manzoor appellants respectively. These recoveries have been proved by S.I. Nazir Ahmad P.W.9 and Noor Din P.W.8 S.I. Nazir Ahmad P.W.9 further stated in his cross---examination that at the time of the spot inspection he found brick-bats lying in the houses of both the parties.
12. There is no allegation that prior to the occurrence the parties were inimical or harbouring any grudge against each other. It was a sudden and unpremeditated flare up in the heat of passion precipitated by a family dispute. In this view of the situation, it cannot be said that there was any common object or common intention to kill anyone and, therefore, the principle of vicarious liability cannot obviously be invoked. This is also borne out from the fact the injuries ascribed, one each, to Aslam and Manzoor appellants were oh medical examination found as simple. Ashiq appellant also did not appear to have attacked the deceased with a deliberate intention to kill him for if it were so, he would have attempted to repeat the blow to the deceased.
13. For the above reasons, I maintain the conviction of Ashiq appellant under section 304, Part I, P.P.C. For inflicting a fatal Chhuri blow on the deceased but in view of the circumstances in which the occurrence took place I reduce his sentence from R.I. For 10 years to R.I. For seven years. I, however, maintain the sentence of fine awarded to him. The whole of the fine, if realized, shall be paid to the heirs of the deceased as compensation. While computing the period of sentence, he shall be given benefit of the provisions of section 382-B, Cr.P.C.
14. As regards Muhammad Aslam and Manzoor appellants, their conviction and sentence under section 304, Part I read with section 34, P.P.C. Is set aside and they are convicted under section 324, P.P.C. And sentenced each to the imprisonment already undergone. The sentence of fine imposed on them is remitted.
15. With the above alteration in the conviction and reduction in the sentence, -- the appeal is dismissed. Muhammad Aslam and Manzoor appellants are on bail. They are discharged from their bail bonds.
16. So far as Iqbal and Tariq co-accused are concerned, their acquittal by the learned trial Court was fully justified. They are not assigned any injury to anyone. They are respectively attributed only proverbial Lalkara and Japha which in the circumstances of the case sounds implausible.
Moreover, the plea of alibi raised by them was found as correct even during investigation, as admitted by S.I. Nazir Ahmad P.W.9 in his cross-examination. For these reasons the revision petition filed against their acquittal is dismissed.