1. ' IJAZ NISAR, J.-- Muhammad Asghar, Sajawal, Muhammad Akbar, Muhammad Ashraf, Abdur Razzaq, Muhammad Suleman, Muhammad Safdar, Talib, Muhammad Afsar, Niamat and Sikandar were tried for the murder of Aurangzeb and for murderously assaulting Muhammad Amir, Muhammad Nazir, Muhammad Riaz, Muhammad Fayyaz, Tariq Javaid and Muhammad Doraiz P.Ws. By judgment, dated 15-2-1986, learned Additional Sessions Judge, Chakwal acquitted Sajawal, Muhammad Akbar, Muhammad Suleman, Muhammad Safdar, Talib Hussain, Muhammad Afsar, Niamat and Sikandar of the charge under section 302/149, P.P.C. But convicted them alongwith others under section 148, P.P.C. And sentenced them to one year's R.I. Each. Muhammad Ashraf was convicted under section 302, P.P.C. And sentenced to death plus a fine of Rs.10,000 or in default to undergo two years' R.I. Out of the fine, if recovered, Rs.8,000 were ordered to be paid as compensation to the legal heirs of Aurangzeb deceased. Muhammad Asghar and Abdur Razzaq were convicted under section 302, P.P.C. And sentenced to imprisonment for life plus a fine of Rs.10,000 or in default to undergo two years' R.I. Half of the fine, if recovered, was ordered to be paid as compensation to the heirs of the deceased. Except Muhammad Ashraf all the accused were also convicted under section 325/149, P.P.C. And sentenced to three years' R.I. Plus a fine of Rs.500 or in default to undergo three months' R.I. Each for causing injuries to Muhammad Nazir, Muhammad Riaz, Fayyaz and Dauraiz P.Ws. Muhammad Safdar was also convicted under section 307, P.P.C. And sentenced to 5 years' R.I. Plus a fine of Rs.2,000 or in default to undergo 6 months' R.I.
2. For murderously assaulting Muhammad Tariq Javid P.W. Sajawal was also convicted under section 325, P.P.C. For causing injuries to Muhammad Amir P.W. And sentenced to 3 years' R.I. And a fine of Rs.1,000 or in default to undergo three months' R.I. The entire fine was ordered to be paid to Muhammad Amir P.W. As compensation. All the sentences of imprisonment were ordered to run concurrently with benefit of section 382-B, Cr.P.C.
2. Abdur Razzaq etc. Have filed Criminal Appeal No. 22 of 1986, Muhammad Afsar has filed Criminal Appeal No. 30 of 1986 while the complainant has filed Criminal Revision No. 91 of 1986 for the enhancement of the sentence of all the accused and for setting aside the acquittal of the accused mentioned above from the charge under section 302, P.P.C. And for convicting them under section 307, P.P.C. As well. The learned Sessions Judge has also sent Murder Reference for confirmation of the death sentence. All the matters shall be disposed of by this judgment.
3. ' According to the learned counsel for the petitioner except Muhammad Ashraf the sentences of the other appellants have been suspended by this Court and they are on bail. Niamat appellant is said to have died after having been released on bail while Talib Hussian appellant is said to have served out the sentence.
3. Sajawal, Muhammad Akbar and Muhammad Ashraf appellants are real brothers. Muhammad Asghar and Muhammad Safdar are the sister's sons of Sajawal, Muhammad Akbar and Muhammad Ashraf. Abdul Razzaq and Muhammad Suleman appellants are real brothers and are sons of Muhammad Akbar, Talib Hussain appellant is married to the real sister of Muhammad Ashraf appellant while Muhammad Afsar appellant is married to the sister of Muhammad Asghar.
4. Niamat and Muhammad Ashraf appellant are Hamzulf. Their wives are sisters inter se. Sikandar appellant is not said to be related to any of the appellants.
4. The prosecution witnesses are also related as under:- ' Khan Beg P.W.8, Muhammad Nazir P.W.9 and Muhammad Doraiz P.W.13 are brothers of Aurangzeb deceased. Tariq Javaid P.W.10 and Muhammad Riaz P.W.12 are sons of Aurangzeb deceased.
5. Muhammad Fayyaz (given up) was also their brother.
5. The prosecution case is that Mst. Anwar &gum, sister of Muhammad Asghar appellant was married to Muhammad Doraiz P.W.13. A year before the occurrence on some dispute she left the house of her husband and went to the house of Muhammad Asghar appellant alongwith her ornaments. About two months before the occurrence Khan Baig P.W.8 got her restored to Muhammad Doraiz but she left the ornaments with Muhammad Asghar appellant. Khan Baig P.W.8 and Muhammad Doraiz P.W.13 asked Muhammad Asghar appellant to return the ornaments but he declined to do so. On the day of occurrence (13-71983) at about 9 a.m. Muhammad Ashgar, Abdur Razzaq and Muhammad Safdar appellants came to the Haveli of Khan Baig where he alongwith his brother Muhammad Doraiz P.W. Protested to them for levelling a baseless charge of misappropriation of the ornaments of Mst. Anwar Begum. The parties exchanged hot words and the appellants left while issuing threats to Muhammad Doraiz P.W. That they will arrange new ornaments for him.
6. ' On the same day at 11-30 a.m. Khan Baig P.W.8 heard an alarm from ponds side. He went there and saw the appellants present there. Muhammad Ashraf appellant was armed with a hatchet while the others carried sticks. He and his brother Aurangzeb deceased entreated the accused not to fight with them but they did not listen. Muhammad Asghar and Abdur Razzaq appellants caused stick blows to Aurangzeb deceased. Muhammad Ashraf appellant gave him a hatchet blow on the head. Aurangzeb fell injured. Khan Baig P.W. Raised an alarm on which Nazeer P.W.9, Tariq Javaid P.W.10, Muhammad Riaz P.W.12, Muhammad Doraiz P.W.13, Muhammad Ameer and Fayyaz (not produced) arrived there. They tried to rescue Aurangzeb. But Muhammad Safdar appellant gave a stick injury to Tariq Javaid P.W. On his head. Sajawal appellant inflicted a stick injury on Muhammad Amir P.W. On his head. Thereafter all the appellants inflicted injuries to Muhammad Doraiz, Muhammad Nazeer, Muhammad Riaz and Fayyaz P.W. When all of them fell injured the appellants left for their houses. Besides the above, Bashir P.W. (not produced) also witnessed the occurrence. The injured were carried to Civil Hospital, Chakwal. Aurangzeb succumbed to the injuries on reaching the hospital. Khan Baig P.W.8 left for Police Station Chakwal to report the matter. He recorded his statement Exh.P.N. To Ghulam Murtaza, S.H.O. Police Station Chakwal on 13- 7-1983 at 1-00 p.m.
7. ' After recording the F.I.R. The S.H.O. Left for Civil Hospital, Chakwal and prepared the injury statement and inquest report of the deceased. He then left for the spot and secured blood-stained earth. Later he was transferred and was succeeded by Muhammad Zar P.W.14, who arrested the appellants. On 20-7-1983 Muhammad Safdar, Talib Hussain and Muhammad Akbar led to the recoveries of Lathis P.4, 5 and 6 respectively from their houses. Muhammad Ashraf and Niamat appellants were arrested on 21-7-1983. Sajawal, Suleman, Muhammad Afsar and Niamat appellants led to the recoveries of Lathis while Muhammad Ashraf got recovered blood-stained hatchet P.10 vide memo. Exh.P.U. On 24-71983. Sikandar appellant led to the recovery of Lathi P.12, Abdur Razzaq appellant who was arrested on 15-8-1983 led to the recovery of Lathi P.13 vide memo.
8. Eidi.P.X. Muhammad Asghar appellant led to the recovery of Lathi P.14 on 22-10-1983. Khan Baig P.W.8 and Muhammad Zar Inspector P.W.14 attested the recovery memos. Hatchet P.10 of Muhammad Ashraf and Lathi P.13 of Abdur Razzaq were found to be stained with human blood by the serologist while no blood was found on other sticks/Lathis.
9. ' Dr. Syed Abid Hussain P.W.2 conducted autopsy on the dead body of Aurangzeb deceased and found the following injuries thereon:-
(1) An incised wound 4-1/2" x 1/2" x brain deep. The bone underneath was cut and fractured on back of left side of scalp going forwards and inwards towards right.
(2) An abrasion 2" x 1/2" on right side of forehead.
(3) Three abrasions in area 2" x 1/2" on nose. The largest was 3/4" x 3/8" and smallest was 1/8" x 1/8".
(4) Swelling 1-1/2" x 1-1/2" on left zygomatic area.
(5) An abrasion 1" x 1/2" on frontal part of scalp in midline.
(6) Two abrasions each 1/2" x 1/2" on front of right knee joint.
(7) An abrasion 2-1/2" x 1/4" on back and outerside of left forearm middle.
10. ' Scalp and skull were cut through and through under injury No.1 which was fatal and caused by sharp-edged weapon. The other injuries were caused by blunt weapon and were simple in nature.
11. ' The said doctor also examined Muhammad Nazeer P.W.9 and found eight simple blunt weapon injuries on his person (see page 14 of the printed paper book for details).
12. ' He had also examined Tariq Javaid P.W.10 and found the following injury on his person:- ' A lacerated wound 1" x 1/8" x bone deep with swelling 2-1/2" x 2-1/2" x on top of skull."
13. ' The injury was grievous in nature caused by blunt weapon.
14. ' Three blunt weapon simple injuries were found on the person of Muhammad Riaz P.W. (see page 15 of the printed paper book).
15. ' Two simple blunt weapon injuries were found on the person of Muhammad Doraiz P.W.13 (see page 16 of the printed paper book). One simple blunt weapon injury was found on the person of Muhammad Amir P.W. (not produced) (see page 13 of the printed paper book), while two simple blunt weapon injuries were found on the person of Fayyaz (page 15 of the printed paper book).
16. ' To prove its case, the prosecution examined 17 P.Ws. Of them, Khan Baig P.W.8, Muhammad Nazeer P.W.9, Tariq Javaid P.W.10, Muhammad Riaz P.W.12 and Muhammad Doraiz P.W.13 are the eye- witnesses. Khan Baig P.W.8 is complainant of the case also. Muhammad Nawaz P.W.14, Inspector Police and Ghulam Murtaza Inspector P.W.15 carried out investigation of the case. Dr. Syed Abid Hussain conducted post-mortem examination and examined the injured P.Ws. Dr. Munawar Ahmad P.W.1 examined X-Ray films of Muhammad Doraiz and Tariq Javid P.Ws. The remaining witnesses were of formal nature. Muhammad Ameer and Fayyaz injured P.Ws. Were not examined.
17. ' Muhammad Suleman and Muhammad Afsar appellants admitted the occurrence while the rest denied it. According to them on the day of occurrence a volley ball match was played in the village. One team consisted of the injured P.Ws. And the other of Afsar, Ajaib, Ghazanfar, Nasir, Mehr Khan and others. The dispute arose in the course of the game leading to the pelting of stones at each other. The injured P.Ws. And the deceased received injuries in the melee. Muhammad Afsar appellant stated that he acted in self-defence with a hatchet carried by him for cutting of the tree branches and that he was also hit by the stones. According to them Khan Baig P.W.8 and Bashir (not examined) were not present at the spot. Sikandar appellant stated that he had been falsely involved at the instance of Khizar Hayat, a dismissed Sub-Inspector of Police.
18. ' Sikandar examined Noor Muhammad P.W.1, Muhammad Fazal D.W.2 and Malik Mukhtar Haider D.S.P. D.W.3 in his defence to show that he had been involved on account of the enmity with Khizar Hayat, Ex-S.I. Police. Subedar Sher Khan D.W.4 was examined to prove the alibi of Muhammad Asghar appellant. According to him Muhammad Asghar was a Naik in the Army and that he was on leave from 3-6-1983 to 12-6-1983 whereafter he remained present on duty.
19. ' The learned trial Court found that the genesis of occurrence was shrouded in mystery. The ocular account was creditworthy and was supported by the medical evidence. The recoveries from the appellants stood established. The defence version was not confidence inspiring, the occurrence had not taken place in prosecution of the common object of the appellants and each of the appellants was individually liable for his act. Accordingly he convicted and sentenced the appellants as described above.
20. ' It is contended that the motive is not established, the eye-witnesses are interested being closely related inter se, that the prosecution story is improbable, that the number of the accused has been exaggerated and is not commensurate with the damage done and that the recoveries do not stand established for want of independent evidence.
21. Khan Baig P.W.8, Muhammad Nazir P.W.9 and Muhammad Doraiz P.W.13 are real brothers of Aurangzeb deceased while Tariq Javed P.W.10 and Muhammad Riaz P.W.12 are sons of the deceased. Since Muhammad Nazir P.W.9, Tariq Javed P.W.10, Muhammad Riaz P.W.12 and Doraiz P.W.13 were injured during the occurrence and duration of their injuries tallied with that of the deceased, their presence at the relevant time cannot be doubted. In this view of the matter the mere relationship of the P.Ws. With the deceased in the absence of any motive to falsely implicate the appellants will not be enough to exclude out of consideration their evidence. They stand corroborated by the medical evidence. They have given specific roles to each of the appellants in the occurrence. They stand corroborated by the recoveries of blood-stained hatchet P.10 and Lathi P.13 at the instance of Muhammad Ashraf and Abdur Razzaq appellants respectively. Khan Baig P.W.8 and Muhammad Zar Inspector P.W.14 have given a consistent account of the manner, mode and place of recoveries. The F.I.R. Was promptly lodged and there was no time at the disposal of the complainant party to make deliberations for the false implication of the accused. The occurrence had taken place at 11-30 a.m. While the report was lodged at 1 p.m. The delay of 1-1/2 hours took place because the injured were first taken to the hospital and the police station was also at a distance of 11 miles from the spot.
22. ' The defence plea appears to be an afterthought. If the fight had taken place between the parties in the Volley Ball match the appellants must have also received injuries at the hands of the complainant party but surprisingly no one was injured. On the other hand six prosecution witnesses had suffered injuries. The dimensions of their injuries are not characteristic of stone pelting as alleged by the defence but appeared to have been caused by blunt weapons like sticks.
23. Muhammad Asghar P.W. Had not pleaded alibi either during the investigation or in his statement under section 342, Cr.P.C. Likewise no direct enmity between Sikandar appellant and Khizar Hayat retired A.S.I. Police is brought on record to show that Sikandar appellant had been involved at his behest or that he had any influence over Khan Baig P.W. To persuade him to falsely implicate him in the case. For these reasons, the defence version was rightly discarded by the learned trial Court.
24. The recovery of blood-stained earth from in front of the house of the complainant party also belies the defence plea that the occurrence had taken place during the Volley Ball match.
25. ' The prosecution story that there were two stages of the occurrence, first at 9 a.m. When Muhammad Afzal, Abdur Razzaq and Safdar had gone to the house of Khan Baig and protested to Muhammad Doraiz P.W. For levelling a baseless allegation against them for not returning the ornaments of Mst. Anwar Begun resulting in the exchange of hot words and second of their coming back after about 2-1/2 hours in the company of the other accused is not confidence inspiring. In all probability, there was only one visit by the accused to the house of Khan Baig P.W. For lodging protest with him over the levelling of allegation against Muhammad Asghar appellant of having misappropriated ornaments of his sister (wife of Doraiz P.W.) and it was on that occasion that a quarrel took place between the parties resulting in injuries to the complainant party. The learned trial Court was also of the view that there was no premeditation or sharing of common intention among the accused and that the occurrence had taken place at the spur of moment and as such each of the accused would be individually liable for his act. We agree with this conclusion and would decide the appeal accordingly.
26. ' The fatal injury to the deceased is attributed to Muhammad Ashraf only. He was armed with a hatchet and caused a solitary injury to the deceased though there was nothing to prevent him from causing more injuries to him. In this view of the matter and suddenness of the occurrence we alter his conviction from section 302 to section 304, Part I, P.P.C. And sentence him to 10 years' R.I.
27. Plus a fine of Rs.10,000 or in default to undergo two years' R.I. With benefit of section 382-B, Cr.P.C.
28. ' Abdur Razzaq and Muhammad Asghar appellants who gave one simple blunt weapon injury each to the deceased do not deserve to be convicted under section 302, P.P.C. Accordingly, their conviction is altered to section 323, P.P.C. And they are sentenced to one year's R.I. Each plus a fine of Rs.1,000 each or in default to undergo one month's R.I. With benefit of section 382-B, Cr.P.C. The conviction of Muhammad Safdar appellant who gave one blunt weapon grievous injury to Tariq Javaid P.W. Deserves to be altered from section 307, P.P.C. To section 325, P.P.C. We and sentence him to 5 years' R.I. Plus a fine of Rs.2,000 or in default to undergo 6 months' R.I. With benefit of section 382-B, Cr.P.C. The fine, if recovered, shall be paid to the legal heirs of the deceased and the injured P.Ws. Since no specific injury is attributed to other appellants they are considered entitled to acquittal. We and acquit them of the charges.
29. ' Criminal Appeal No.22 of 1986 is disposed of in the above terms and the acquitted appellants are discharged from their bail bonds.
30. ' Criminal Appeal No. 30 of 1986 is allowed and the conviction and sentence of Muhammad Afsar appellant is set aside and he is discharged from the bail bonds.
31. ' The death sentence of Muhammad Ashraf is NOT confirmed.
32. ' Criminal Revision No. 91 of 1986 filed by Khan Baig P.W. Is dismissed in the light of the above discussion.