' Javid Iqbal and Karamat Ali son of Muhammad Ali alongwith Muhammad Aish alias Muhammad Khan and Pervaiz Ahmad were tried for the murder of Ejaz Ahmad deceased and for murderously assaulting Abdul Ghafoor P.W.
' By judgment dated 2-3-1987 learned Additional Sessions Judge, Sheikhupura convicted Javid Iqbal and Karamat Ali under section 302/34, P.P.C. And sentenced them to imprisonment for life plus a fine of Rs.10,000 each or in default to undergo two years' R.I. Under section 307, P.P.C. They were sentenced to four years' R.I. Each. Both the sentences were ordered to run concurrently. The fine, if realised, was ordered to be paid to the legal heirs of the deceased. They have appealed.
' During the pendency of the case the appellants' father Muhammad Aish alias Muhammad Khan and brother Pervaiz Ahmad were murdered by the complainant party. It is stated that on account of compromise between the parties the accused of the said case were acquitted.
2. On 28-3-1983 at about 5-45 p.m. Muhammad Malik P.W.9, Ijaz Ahmad deceased, Abdul Ghafoor P.W.12 and Shah Nawaz P.W.13 were proceeding to their village. Ijaz Ahmad deceased and Abdul Ghafoor injured P.W. Were going ahead. When they reached near wheat field of Muhammad Saeed the appellants and their co-accused who were sitting in ambush in a cluster of reeds came out armed with hatchets and Sotas. Muhammad Aish raised a Lalkara on which Karamat Ali gave a Sota blow on the head of Ijaz Ahmad deceased who fell injured. Javid Iqbal and Karamat Ali, Pervaiz Ahmad and Muhammad Aish accused gave further blows to him with their respective weapons. Javid Iqbal caught hold of Abdul Ghafoor P.W. He and the other accused injured him with their respective weapons. The injured were carried to their homes where Ijaz Ahmad succumbed to the injuries.
3. The occurrence was sequel to children's brawl. About 15/16 days before the occurrence a quarrel had taken place between Qamroo son of Ijaz Ahmad deceased, aged 7/8 years, and Mustafa aged 8/9 years, son of Muhammad Aish in the school. Maqsud Ahmad slapped Mustafa and informed his father. The latter beat Qamroo son of the deceased. One Maqsud Arain intervened and gave a Sota blow to Muhammad Aish.
4. Muhammad Malik P.W.9 reported the matter to the police by lodging report Exh.P.E. At P.S. Farooqabad on 28-3-1983 at 10-10 p.m.
' S.I. Nazir Ahmad P.W.15 arrested the accused. Javid Iqbal and Karamat Ali appellants led to the recovery of hockey P.7 and hatchet P.8 respectively. Karamat Ali also produced Sota P.6 before the police. After the investigation the accused were challaned.
5. Dr. Ijaz Hussain Shah performed the post-mortem examination on the dead body of Ijaz Ahmad deceased (45) on 29-5-1983 and found 12 injuries thereon. Two injuries were caused by sharp- edged weapon and the rest by blunt weapon. Injuries Nos. 1 to 8 were collectively responsible for causing death of the deceased. The time between injuries and death was one hour and that between death and post-mortem examination 15 to 20 hours.
6. Dr. Arshad Iqbal medically examined Abdul Ghafoor P.W. On 29-3-1983 at about 4 p.m. And found 8 injuries on his person two of which were caused by sharp-edged weapon and rest by blunt weapon. One injury was declared grievous having fractured left patella (lower leg)
' Karamat Ali appellant was examined by Dr. Saleem Akhtar on 31-3-1983 and simple blunt weapon injury of the duration of 3/4 days was found on his person.
7. The prosecution examined 15 witnesses in support of its case. Muhammad Malik P.W. 9, Abdul Ghafoor P.W.12 and Shah Nawaz P.W.13 furnished the ocular account. Muhammad Malik P.W.9 also deposed about the motive. Shah Nawaz P.W.13 and Manzoor (not produced) testified to the recoveries.
8. Relying on the ocular testimony the trial Court convicted and sentenced the appellants as stated above.
' The recoveries of Sota and hatchet from the appellants were disbelieved for want of any independent evidence (para. 30 of the judgment). The motive was also not accepted by the trial Court (para. 32 of the judgment). The appellants were not awarded the maximum penalty because two of their close relatives father and brother were murdered during the pendency of the trial.
9. It is contended that the eye-witnesses were interested against the appellants being very closely related to the deceased. Muhammad Malik P.W.9 is real uncle of the deceased while Shah Nawaz P.W.13 is real brother of the deceased. Muhammad Sharif who was an independent witness was neither cited nor examined because he was not prepared to support the prosecution version.
10. I have perused the evidence in the light of the arguments addressed by the learned defence counsel but could not find any material discrepancy therein. The eye-witnesses have given a consistent account of the occurrence and stand corroborated by the medical evidence. The number of the injuries is quite A proportionate to the number of the accused. The F.I.R. Was also promptly lodged with all the necessary details showing that there was no time at the disposal of the complainant party to concoct/fabricate the story. Though the motive was not found proved by the learned trial Court but no convincing reasons have been advanced in the said discussion.
Except the motive set up by the prosecution there was no other cause or reason for the occurrence.
According to Muhammad Malik P.W.9 the occurrence was sequel to quarrel between Mustafa son of Muhammad Aish and Qamroo son of the deceased about 16/17 days prior to the occurrence. It stands established that it were the appellants and their companions who had taken part in the occurrence and caused injuries to the deceased and Abdul Ghafoor P.W. But an important question would arise as to which offence was committed by the accused in view of the fact that none of the injuries suffered by the deceased was individually fatal. According to the doctor who conducted his autopsy injuries Nos. 1 to 8 were collectively responsible for his death. None of the injuries was declared individually sufficient to cause the death. One of the accused though armed with a hatchet did not inflict injuries with it on any vital part of the body. It appears from these circumstances, that the accused did not intend to cause his death though they knew that death was likely to result by the injuries caused by them. Accordingly, I alter the conviction of the appellants from section 302/34, P.P.C. To section 304, Part II, P.P.C. And sentence them to 5 years' R.I.
Each plus a fine of Rs.10,000 each or in default to undergo one year's R.I. Their conviction under section 307/34, P.P.C. Is altered to one under section 325/34, P.P.C. And they are sentenced to two years' R.I. Each plus a fine of Rs.5,000 each or in default to undergo 6 months' R.I. In awarding the above sentences the fact of compromise between the parties has also been kept in view. During the pendency of the trial two of the co-accused of the appellants, namely, Muhammad Aish alias Muhammad Khan father of the appellants and their brother Pervaiz Ahmad had been murdered for which the complainant party was challaned but they were acquitted on account of a compromise between the parties. Mst. Sharifan Bibi mother of Ijaz Ahmad deceased, his father Khan Muhammad, his widow Razia Begum, his brother Shah Nawaz, Muhammad Malik complainant uncle of the deceased and Abdul Ghafoor P.W.12 have sworn affidavits to the effect that there was no background of enmity between the parties and the occurrence had taken place at the spur of moment and that they have forgiven the appellants. Both the above sentences shall run concurrently and the appellants shall also be given the benefit of section 382-B, Cr.P.C.
11. The appeal is disposed of in the above terms. .