IJAZ NISAR, J.--Muhammad Siddique son of Ahmad Din (50) his son Muhammad Ilyas (17/18), Rehmat Ali son of Ahmad Din (70) his sons Abdus Sattar alias Abdul (29) and Muhammad Riaz (25) were tried by the learned Additional Sessions Judge, Gujranwala for the murder of Muhammad Malik deceased (26/27) years, vide judgment dated 1-4-1984 Muhammad Siddique and Muhammad Ilyas were convicted and sentenced as follows: Muhammad Siddique death plus a fine of Rs.5,000 or in default to undergo 2 years' R.I. Under section 302/34, P.P.C.
One year R.I. Plus a fine of. Rs.1,000 or in default to undergo 6 months' R.I. Under section 324, P.P.C.
For causing injuries to Mst. Parveen P.W.
Muhammad Ilyas imprisonment for life plus a fine of Rs.5,000 or in default to undergo 2 years' R.I.
Under section 302/34, P. P. C.
Three years' R.I. 'plus a fine of Rs.1,000 or in default to undergo 6 months' R.I. Under section 307, P.P.C.
For murderously assaulting Muhammad Siddique P.W. Both the sentences were ordered to run concurrently.
Half of the fine was ordered to be paid to the heirs of Muhammad Malik deceased. Rehmat Ali, Abdus Sattar and Muhammad Riaz were, however, given the benefit of doubt and acquitted.
Challenging their conviction and sentences Muhammad Siddique and Muhammad Ilyas have filed appeal while the learned trial Court has made a reference for confirmation of the death sentence of Muhammad Siddique. Both the matters shall be disposed of by this judgment.
2. The prosecution case is that about two months prior to the occurrence Muhammad Malik deceased had installed a water-pump in the compound of his house. The appellants objected to it and told them that they would not allow him to drain out water through the street passing in front of their house. About 15/16 days prior to the occurrence -Muhammad Siddique P.W. Complained to Abdus Sattar Lambardar and Ali Muhammad in this behalf who called the appellants and asked them to allow the complainant party to drain out the water. On 9-3-1982 at about 5 p. m. The complainant party made a hole in the wall of their compound for draining out the water. The appellants and their companions objected to it and hurled abuses at the complainant party. Abdul and Riaz accused (since acquitted) felled the deceased whereafter Muhammad Siddique appellant inflicted a dagger blow on him in the chest. Muhammad Siddique P.W.4 and his daughter Mst. Parveen P.W.5 tried to intervene but Muhammad Ilyas appellant injured Muhammad Siddique P.W. With a dagger while Muhammad Siddique appellant injured Mst. Parveen P.W. With his dagger.
The occurrence was witnessed by Muhammad Bashir P.W.6, Muhammad Yaqub and Muhammad Sadiq (not produced). Muhammad Malik brother of Muhammad Siddique P.W.4 succumbed to the injuries on the spot. The injured P.Ws. Were removed to the Civil Hospital, Gujranwala. On learning about the occurrence Malik Tahir Mahmood Inspector, P.W.8 visited Civil Hospital, Gujranwala and recorded the statement Exh. P.D of Muhammad Siddique P.W. And sent it to the Police Station for formal registration of the case. Exh.P.D./1 is the formal F.I.R. Recorded by Muhammad .Majid Khan A.S.I. Thereafter, the S.H.O. Proceeded to the spot, prepared the injury statement Exh.P.J. And inquest report Exh.P.K. Of the deceased. He arrested the appellants on 10-3-1982. Muhammad Siddique and Muhammad Ilyas appellants led to the recoveries of blood-stained daggers Exhs. P.3 and P.4 from their house through memos Exhs. P.E. And P.F. Respectively. The daggers were sent for chemical examination and as per report Exh.P.R. Of the Serologist were found to be stained with human blood.
3. Dr. Ashfaq Ahmad P.W.1 conducted autopsy on the dead body of Muhammad Malik deceased on 10-3-1982 at 3 p.m. And found the following injuries thereon.
(1) Incised wound 2 c.m. x 1 c.m. x going deep on front of left chest 3 c.m. From interior midline of chest, 6 c.m. From left mammary gland (inner side).
(2) Incised wound 3 c.m. x 1 c.m. x going deep on back of right shoulder.
(3) Abrasion 1 c.m. x -- c.m. On small finger of left hand.
Death was due to shock and haemorrhage as a result of injury No.1. Injuries Nos.l and 2 were caused by sharp weapon. Injury No-1 was grievous in nature while the rest were simple. The time between death and injuries was immediate and that between death and post-mortem examination about one day.
He also examined Muhammad Ilyas appellant on the same day and found the following injuries on his person:
(1) Lacerated wound 1 c.m. x-- c. m. x scalp deep on top of head.
(2) Complained of pain on back of his chest and on his front of chest.
Both the injuries were simple in nature and were caused by blunt weapon. Probable duration was one day.
Dr. Harbans Lal P.W.9 medically examined Muhammad Siddique P.W.4 on 9-3-1982 at 6-10 p.m. And found the following injuries on his person:
(1) Incised wound 1--c.m. x -- c.m. x scalp deep on the back of head in the middle.
(2) Incised wound 2 c.m. x 1 c.m. Muscle deep on the back of right shoulder.
Both the injuries were caused by sharp-edged weapon and were simple in nature.
Mst. Parveen P.W.5- was also medically examined by him on the same day and he noticed the following injury on her person: Incised wound 1 c. m. x -- c. m. Skin deep on the back of right hand's middle finger at its base.
The injury was simple caused by sharp-edged weapon.
4. Muhammad Siddique appellant denied the prosecution allegations and stated that he had been falsely involved being the father of Muhammad Ilyas appellant. He denied his presence at the spot at the time of occurrence.
Muhammad Ilyas appellant denied the prosecution allegations. He pleaded to have acted in self- defence and made the following statement: "At the time of occurrence I was going to my house. Allah Ditta son of Muhammad Malik deceased quarrelled with me and abused me in the street. I slapped him and he began to weep. In the meantime, Muhammad Malik deceased and Muhammad Siddique P.W. Came out of their house armed with a danda and a sarya respectively. Muhammad Malik deceased gave me a danda blow on my head while Muhammad Siddique P.W. Gave a sarya blow to me on the front of and back of my chest. I took out a knife from my pocket and caused injuries to Muhammad Malik deceased and Muhammad Siddique P.W. In self-defence. No other P.W. Was present at the spot and none of the other co-accused was present there. I thereafter went to my house from where police arrested me on the same day and got me medically examined."
He tendered in evidence an attested copy of his school leaving certificate Exh.D.C. No other evidence was led by him or his father in defence.
5. The prosecution case rests on the evidence of Muhammad Siddique P.W.4 (injured), Mst. Parveen P.W.5 (injured) and Muhammad Bashir P.W.6. Muhammad Yaqub and Muhammad Sadiq eye- witnesses named in the F.I.R. Were given up as won over. The recoveries of daggers were proved by Muhammad Bashir P.W.6 and Tahir Mahmood Inspector P.W.8.
6. Relying on the ocular testimony, the recoveries and the motive the trial Court convicted and sentenced the appellants as stated above.
7. Criticising the judgment learned counsel for the appellants stated that lot of improvements were made upon the F.I.R. At the trial. In the F.I.R. There was no mention of any injury having been caused by Muhammad Ilyas to the deceased while at the trial it was stated that he also caused a dagger injury to him. Furthermore, that all the eye-witnesses are interested being closely related to the deceased. Muhammad Siddique P.W.4 is real brother of the deceased while Mst. Parveen P.W. Is daughter of P.W.4. Muhammad Bashir P.W.6 is a cousin of the deceased. The motive is also stated to be false. Lastly it was contended that the eye-witnesses having been disbelieved qua Rehmat Ali, Abdus Sattar and Muhammad Riaz were not worthy of credence against the appellants as well without independent corroboration.
8. The eye-witnesses examined by the prosecution were natural witnesses because they lived near the spot. There was no previous background of enmity between these witnesses and the appellants, therefore, they cannot be termed as interested witnesses. They had no motive to falsely implicate the appellants. They stand corroborated by the medical evidence. According to them daggers were used by the appellants on the deceased and the injured P.Ws. The presence of sharp-edged injuries on their persons confirms their version. Muhammad Siddique P.W.4 and Mst.
Parveen P.W.5 are the injured P.Ws. Their presence cannot thus be doubted. The duration of their injuries tallies with that of the deceased. The motive set up by the prosecution stands established through the evidence of Muhammad Siddique P.W.4 and other witnesses. The recoveries of blood- stained daggers at the instance of the appellants are duly proved by the evidence of Muhammad Bashir and Malik Tahir Mahmood S.H.O. Both were put searching questions in the cross- examination but their, evidence remained unshattered.
9. The arguments that since the eye-witnesses had been disbelieved qua Rehmat Ali, Abdus Sattar and Muhammad Riaz they should not have been relied upon in respect of the appellants is devoid of any legal force because the principle of falsus in uno and falsus in omnibus is not of universal application and the Courts have to sift grain from the chaff. The acquitted accused were empty handed and no significant role in the occurrence is attributed to them. They were not directly concerned with the motive. Therefore, their acquittal would not have any bearing on the case of the present appellants. However, lot of force appears in the argument of the learned counsel for the appellants that the eye-witnesses had made material improvements upon their previous statements in respect of part played by each of the appellants in the occurrence. In the case as originally set up in the F.I.R. No injury to the deceased had been attributed to Muhammad Ilyas appellant but at the trial he was also alleged to have given dagger blow to the deceased on the top of his right shoulder. No satisfactory explanation was advanced by the complainant about this omission. Muhammad Ilyas appellant had also received injuries during the occurrence but there is no explanation at all of his injuries. One of the injuries on his person was on top of head which could not be self-inflicted or self-suffered. There was no previous background of enmity between the parties and the only bone of contention between them was the draining out of complainant's hand-pump water which they wanted to drain out in the street adjacent to the house of the appellants who were not agreeable. On the day of occurrence the complainant party had made a hole in the wall for draining out the water which was objected to by the appellants and this led to an altercation between them followed by injuries to one another. The appellants did not take any undue advantage of the situation and only one dangerous/fatal injury was caused to the deceased while his other injuries were simple in nature, one of them being abrasion 1 c. m . x 2 c. m .
Muhammad Siddique and Mst. Parveen P.Ws. Had also suffered simple injuries. Muhammad Ilyas appellant was also found to have suffered unexplained sharp-edged weapon injuries or, the top of head and right shoulder The defence plea is not convincing. No reason has been advanced by Ilyas as to why Allah Ditta son of Muhammad Malik deceased had quarrelled with him and abused him.
10. In the circumstances discussed above, the occurrence appears to be the result of a sudden fight in the heat of passion upon a sudden quarrel without any pre-meditation and without the appellants having taken undue advantage or acted in a cruel or unsual manner and the case would thus be covered by Exception 4 to section 300 P.P.C. And each of the appellants would be individually liable for his act. The fatal injury to the deceased is attributed to Muhammad Siddique appellant only. Accordingly, his conviction is altered from section 302/34, P.P.C. To section 304, Part I, P.P.C. And he is sentenced to imprisonment for life plus a fine of Rs.15,000 or in default to undergo two years' R.I. He is further convicted under section 324, P.P.C. And sentenced to three years R.I. Plus a fine of Rs.5,000 or in default to undergo 6 months' R.I. For causing simple hurt to Mst. Parveen P.W.
Both the sentences shall run concurrently.
The fine, if recovered, shall be firstly paid to the heirs of the deceased and thereafter to Mst.
Parveen P.W. To the extent of Rs.5,000.
The conviction of Muhammad Ilyas appellant under sections 302/34 and section 307, P.P.C. Is set aside and altered to one under section 324, P.P.C. And he is sentenced to a period of imprisonment already undergone by him plus a fine of Rs.2,000 or in default to undergo three months' R.I. For causing simple hurt to Muhammad Siddique P.W. The fine if recovered shall be paid to Muhammad Siddique P.W. As compensation. Two weeks' time is allowed to him to pay the fine/compensation either directly to Muhammad Siddique or to deposit the same with the trial Court. He is on bail and shall be discharged of bail bonds subject to depositing the fine.
12. The death sentence of Muhammad Siddique appellant is not confirmed.
Subject to the above modification, the appeal is 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.