Muhammad Latif, the appellant, has been convicted under section 302, P.P.C. And has been awarded fife imprisonment and a fine of Rs.5,000 by the learned Additional Sessions Judge, Bahawalnagar by means of his judgment, dated 9-6-1982. The appellant has been directed to suffer six months' R.I. In default of the payment of fine. He has further been directed to pay Rs.5,000 by way of compensation to the heirs of Khadim Hussain deceased as envisaged under section 544-A, Cr.P.C. The accomplice of the appellant Dilawar was convicted under section 324 P.P.C. And was imposed a fine of Rs.1,000 or to suffer four months' R.I. In default thereof. Rafique Azam, and Malik who are stated to have participated in this crime have been acquitted. Muhammad Lateef has lodged this appeal, whereas Criminal Revision No. 61 of 1982 has bean lodged against the order of acquittal. Another Criminal Revision No. 43 of 1982Z has been filed by Sattar Muhammad for the enhancement of the sentence of Muhammad Latif and Dilawar who have been convicted and sentenced. This Criminal Appeal and both the criminal revisions are being decided by means of this consolidated judgment.
2. The facts, which led to the detection of this crime, in substance, are that .2 or 3 days prior to 29- 2-1980, Muhammad Ashraf son of Muhammad Latif aged 8/9 years had abused and given beating to Imtiaz aged 6/7 years son of Khadim Hussain deceased. Khadim Hussain,' the brother of Muhammad Sattar, the complainant, upbraided the appellant, who took it ill. On 29-2-1980 at about 8 a.m. Muhammad Sattar was returning home from his land and he found Khadim Hussain and Umar Hayat standing in front of their houses. The complainant also stood there and commenced talking to them. In the meantime, Latif and Rafique sons of Ghulam Oadir, Dilawar son of Fateh Muhammad, Malik son of Ghulam Rasool and Azam son of Rafique came there while variously armed. Dilawar was armed with a hatchet, whereas the others were armed with a Soti each. Dilawar . Struck a hatchet blow on the head of the complainant, who fell down. Then Latif and Malik gave Soti blows to Khadim Hussain on his head, and the other parts of his body. Khadim Hussain fell unconscious. Azam and Malik both injured Umar Hayat. On the alarm of the complainant party, Dil Murad and Muhammad Javed reached the spot and they saved them from further harm. Khadim Hussain was taken to the hospital where he succumbed to his injuries:
3. Muhammad Sattar lodged the report under sections 148, 307 read with section 149, P.P.C. And -an offence under section 302, P.P.C. Was added subsequently. The report was lodged on the same day which was recorded by Feroze Ahmad S.I. P.W.13. Khadim Hussain had expired in the Bahawalnagar Hospital on 4-3-1980: Latif and Rafique were arrested on 29-24980 at 12-30 p.m. The appellant while in custody, on 3-3-1980 got recovered the blood-stained Sota Exh.P.4 which was taken into possession vide memo. Exh.P.Y. On 3-11-1980, Dilawar got recovered his hatchet Exh.P.8 which was not stained with blood and it was taken into possession vide memo. Exh.P.CC. Rafique, Azam and Malik were arrested on 4-3-1980. On 5-3-1980, Rafique, Malik and Azam produced their Sotis Exh.P.5, Exh.P.6 and Exh.P.7 which were not stained with blood and they were taken -into possession vide memo. Exhs. P.Z., P.AA and P.BB, respectively.
4. During this incident Khadim Hussain, Umar Hayat and Muhammad Sattar were injured from the complainant side, whereas Muhammad Latif and Dilawar were injured from the -side of the appellant. Dr. Abdul Sabur P.W.1 examined Khadim Hussain when he was alive and 'had found the following injuries on his person:-
(1) A contused wound 8" x 8" c.m. On the right side of the skull.
A contused wound 9 c.m. x 8 c.m. On the left side of the forehead, bleeding from the right ear and.
Mouth present. Left-eye swollen. Patient. Unconscious. Both the wounds are dangerous to life.
After the death of Khadim Hussain, the autopsy on his body was conducted by Dr. Capt. Shabir Ahmad Goraya P.W.14, who had listed the following injuries on his corpse:
(1) There was swelling on right side on the scalp, extending from the right ear to the upper side` and both front and backward. Size of swelling was 3-1/2" x 4".
(2)Contusion mark on left upper eyelid size is .1-1/2" x 1-1/2".
(3) An abrasion mark on left knee joint with dimension 3-1/2" x 1-1/2".
He had found an extensive haemotoma under the scalp showing extensive haemorrhage. He has also found multiple fractures of the skull and has opined that the fracture of the skull was sufficient to cause death in the ordinary course of nature.
6. Dr. Abdul Sabur P.W.1 had examined Muhammad Sattar, Umar Hayat, Dilaaur Hussain and Muhammad Latif and had found the following injuries on the persons of each of them:- Injury of Muhammad Sattar (1)An incised wound 7 c.m. x 1 c.m. x bone deep on the neck side of the skull.
Injury of Umar Hayat
(1) An abrasion 1 c.m. Is 1 c.m. On the upper part of the left scapula.
Injuries of Dilawar Hussain (1)An abrasion 8 x 2 c.m. On the inner aspect of the left shoulder.
(2)An abrasion 8-1/Z c.m. x 2 c.m. On the inner aspect of the right shoulder.
(3)A lacerated wound 3 c.m.. x 1 c.m. x bone deep on the left side of the skull.
(4)An abrasion 1/2 x 1/2 c.m. On the back side of the upper half of the left forearm.
(5)An abrasion 6 cm. x 3 c.m. On the back side of the upper half of the left forearm.
(6)An abrasion 2 c.m. x 2 c.m. On the interior aspect of the upper third of the left leg.
(7)An abrasion 5 c.m. x.5 c.m. On the left buttock.
(8)A contused wound 6 c.m. x 2-1/2 c.m. On the outer aspect of the lower third of the right thigh.
(9)An abrasion 3 c.m. x 1 c.m. On the anterior aspect of the middle of the neck.
Injuries of Muhammad Latif (1)A lacerated wound 2-1/2 c.m. x 1 c.m. x bone deep on the back side of the right index finger.
(2)A contused wound 2 c.m: x 1 c.m. On the left side of the skull.
(3)A contused wound 1-1/2 c.m. .x 1 c.m. On the back side of the left ring finger.
(4)Patient complained of pain on lateral aspect of the right chest but no marks of injuries were seen.
The injuries sustained by Muhammad Sattar, Umar. Hayat and Muhammad Latif were declared to be simple in nature. As regards the injuries sustained by Dilawar they were found to be simple with the exception of injury No.1 which was declared as grievous.
7. After the completion of the investigation, the challan of the accused was submitted. Muhammad Latif and Dilawar were awarded the aforementioned punishment, whereas Muhammad Rafique, Azarn and Malik were acquitted.
8. Muhammad Sattar P.W.7, who is a complainant has endorsed the contents of the F.I.R. And has stated the incident as embodied in the F.I.R. He has pointedly stated that Muhammad Latif and Malik gave injuries with their Sotis on the head of Khadim Hussain and he was injured by Dilawar.
He has added that he picked up a stick of Shesham tree from the fuelwood and gave injuries therewith to the accused persons. When` cross-examined, he has testified that their house and the house of Muhammad Laif is located in front of each other and only a lane intervenes. The fight between the children did not take place in the presence of the complainant and he has stated that Latif did not feel offended when he was informed of the fight between the children and he had informed his brother Khadim Hussain that he would advise his son to behave in future and there was no quarrel between Khadim Hussain and Latif during a span of 3/4 days, which intervened between the major incident and the incident of the children.
9. Umar Hayat another brother of the deceased appeared as P.W.8 and has supported the fact that Muhammad Rafique gave him a Dang blow and Azam and Malik injured him with Sotas. He has stated that Muhammad Latif and Muhammad Rafique are the real brothers, whereas Dilawar is the first cousin of Muhammad Rafique. Azam is the son of Rafique accused and Malik is the first cousin of Rafique accused. According to Umar Hayat he was belaboured by three persons but strangely enough, he sustained an abrasion at their hands. His statement is replete with a number of confrontations and improvements.
10. Muhammad Javed P.W.( has testified that he was attracted to the spot at the spot at the alarm of the parties and in his presence Dilawar gave a hatchet blow on the head of the complainant and Latif and Malik gave Sota blows to Khadim Hussain on his head who fell down. He. Has added that Malik and Azam gave Dang blows to Umar Hayat, who also fell down and Muhammad Sattar injured Dilawar and Latif with a branch of tree. In his cross-examination he has stated that the accused did not inflict any injury to anyone of the three injured after their arrival at the spot. He is stated to have gone to the spot from the shop of Dilmurad but he did not state so in his statement before the police. He did not state before the police that Latif held Lalkara to Khadim Hussain to avenge .His insult. This witness was disbelieved by the learned trial Court.
11. Umar fIayat P.W.11 is a recovery witness of blood-stained Sot3 Exh.P.4 which was recovered at the instance of Muhammad Latif appellant. The recovery memo. Is Exh.P.Y. And it appears that words `Khoon Alud" were interpolated therein after its preparation because these words were written in a different pencil and have been inserted above the line. Muhammad Shabbir P.W.12 witnessed the recovery of Sotas from Muhammad Rafique, Malik and Azam which were not stained with blood.
Feroze Ahmad S.I. (P.W.13) could not properly explain the words `Khoon Alud' in recovery memo.
Exh.P.Y. This recovery was also effected two days after the arrest of Muhammad Latif. In his statement under section 342, Cr.P.C. Muhammad Latif explained as under:-- "Immediately before occurrence I came out of my house which is almost opposite to the house of the deceased across the lane. It was in front of my outer door where Khadim Hussain arrived with an iron rod in his hand and had an altercation with me over the quarrel of children. On hearing the noise, my cousin Dilawar accused also arrived. He intervened whereupon Khadim Hussain gave injuries on his head, neck and shoulder with his iron rod. My co-accused Dilawar, picked up a Sota and gave a single blow therewith on the head of Khadim Hussain who fell injured. During this quarrel P.Ws. Abdul Sattar and .Umar Hayat came armed with Sotas and opened attack on myself and Dilawar. I also picked up a hatchet and gave a hatchet injury to P. W. Abdul Sattar in self- defence. Dilawar fell down after receiving the injuries. I and Dilawar were thereafter taken to the police station where we narrated the occurrence to the police but our case was not registered because the complainant party prevailed upon the police and got registered the case against us on incorrect facts. My co-accused Rafique, Azam and Malik were not present at the spot nor they participated in the occurrence. P.Ws. Javed and Dilmurad had not seen the occurrence."
12.Muhammad Rafique, Azarn and Malik denied having participated during this incident and Dilawar in response to question No.8 made the following statement:- "At the time of occurrence, I was present in my house. I heard noise in the lane outside. When I came out of my house I saw that deceased Khadim Hussain while armed with an iron bar was having an altercation with my cousin co-accused Latit, who was empty-handed and was standing in front of his own house. I intervened whereupon Khadim Hussain gave injuries to me on my head, neck and shoulder with his iron rod. I picked up a Sota and gave single blow therewith on the head of Khadim Hussain who fell injured. During this quarrel P.Ws. Abdul Sattar and Umar Hayat came armed with Sotas, opened attack on Latif, and myself. Latif also picked up a hatchet and gave a hatchet injury to P.W Abdul Sattar in self-defence. I fell down after receiving the injuries. I and Latif were thereafter taken to the police station where we narrated the occurrence to the police but our case was not registered because the complainant party prevailed upon the police and got registered the case against us on incorrect facts. My co-accused, Azam, Rafique and Malik were not present at the spot nor they participated in the occurrence. P.Ws. Javed and Dilmurad had not witnessed the occurrence."
13. So far as Muhammad Latif is concerned, he had given a Dang blow on the head of Khadim Hussain. The immediate motive for the commission of this offence is not very clear from the evidence. The children fought with each other about three days prior to this incident and no untoward incident took place during this period. The motive for the commission of this offence has not cogently been proved.
14. The learned counsel for the appellant has taken the plea of self-defence A and has cited Bahawal and 3 others v. The State 1975 P Cr. L J 923, Fateh Muhammad and 3 others v. The State PLD 1981 Lab. 85 and Kala v. The State 1987 SCMR 385 in support of his contention. I do not subscribe to this view because. According to the ocular account of this incident and the site plan Exh.P.V. The incident took place at a distance of about 3 to 4 ft. From the outer door of the house of Khadim Hussain and Muhammad Sattar. The lane between their houses is 44 feet wide and Muhammad Latif went to the spot from point No.4. He attacked Khadim Hussain from a distance about 40 ft.
And in this manner, the right of self-defence is not available to him. It has also been suggested that the case is covered under exception 4 to section 300, P.P.C. As it was a result of sudden fight. In this connection learned counsel for the appellant has referred to Muhammad Ramzan v. The State PLD 1983 Lah. 510 and Isso and 2 others v. The State 1986 P Cr. L J 613. I do not countenance this argument as well, because firstly, the incident did not take place when the children had fought with each others. Secondly, if Malik is excluded, the two blows on the head of Khadim Hussain should be attributed to Muhammad Latif and he acted in a cruel manner. Finally it is not evident as to what talk took place between the parties before this incident and exception 4 to section 300, P.P:C. Is not applicable. Since the incident took place in a heat of passion between the parties in a free fight, the appellant was rightly awarded the life imprisonment and fine by the learned trial Court.
15. As regards Dilawar, he has caused simple injury on the head of Muhammad Sattar with a lighter weapon. Dilawar suffered agony of trial and was simply fined Rs.1,000 under section 324, P.P.C.
Which is enough to meet the ends of justice.
As regards Rafique, Malik and Azam, they have not been injured in this fight. The fact that Rafique, Azam and Malik had injured Umar Hayat is belied by the medical evidence because Umar Hayat received only one abrasion The learned trial Court while discussing the case of Malik, Azam and Rafiquc, has observed that there should have been a little bit of acti6ty on their part and they would have been restrained by the elderly person like Muhammad Sattar from I giving a number of blows to their companions. The ocular testimony of the P.Ws. Is devisible and the defence version does not ring true. The learned trial Court B was rightly influenced by the fact that Rafique, Azam and Malik should have at least received abrasions and this fact excludes their presence at the spot.
The learned trial Court has rightly excluded the presence of Rafique, Azam and Malik from this incident. I, therefore, dismiss the appeal and both the revision petitions. Muhammad Latif was released on bail. He should be taken into custody and sent to jail to serve his remaining term of sentence. He is, however, extended the benefit of section 382-B, Cr.P.C.