QURBAN SADIQ IKRAM, J.-On 2.10.1982 at about 7 A.M.Nazar Hussain complainant PW4, Muhammad Siddique PW, Shaukat Ali PW and Waris deceased were proceeding from there village for Gujranwala. When they covered a distance of about 10 acres from village, all of a sudden Muhammad Boota, Muhammad Idrees, Nazar Ali armed with sticks, Barkat Ali armed with Balam, Nazir armed with pistol and Munir Ahmad armed with gun stood up from the paddy field. They shouted lalkara. Munir accused fired but no one was hit. Barkat gave Balam blow on the right bicep of Waris deceased whereafter Idrees gave stick blow on his right elbow, Waris fell down. Barkat, Idrees, Nazar and Boota accused gave repeated blows with their respective weapons to Waris deceased. Thereafter Munir accused fired at Shaukat PW. He was not hit. The alarm attracted Abdul Rashid and Faqir Muhammad PWs. Out of fear of accused, Nazar complainant, Siddique PW and Shaukat PW started running towards the village. Munir and Nazir accused fired ineffectively at Waris deceased. The accused then after a chase caught hold of Shaukat PW near the village and caused injuries with their respective weapons. Mst. Irshad Bibi and Mst. Balqis Bibi PWs also reached there. They tried to help Shaukat PW. The accused caused injuries to Mst Irshad Bibi and then left the spot.
The motive was stated to be that about 11/2 years before present occurrence Munir accused suspected Shaukat PW of having illicit relations with his daughter Mst.Nasim Akhtar. This had resuIted in quarrel between them on two or three earlier occasions.
Shaukat and Waris were being taken to hospital. Waris died in the way on account of the injuries.
Shaukat was admitted in Civil Hospital Gujranwala, whereafter Nazar Hussain PW 4 went to police station Wahndo.District Gujranwala, about 12 miles from the place of occurrence and lodged FIR on the same dav at 2.20 PM recorded by S.I. Amjad Karim PW-14.
2. The dead body of Waris Ali aged about 24 years was sent for post mortem examination which was conducted by Dr.Anjum Javed PW5 at 10.30 A.M. On 3.10.1982. The medical officer on external examination noted 19 injuries on the dead body. Injuries No.4,5,10,13, 14 and 15 on right arm, left buttock and right leg were by sharp edged weapon and remaining injuries were by blunt weapon.
Injury No. 16 was "lacerated wound 2 cm x 1 cm x bone deep with fracture of underline bone of left leg front upper part." Injury NO.17 was a "lacerated wound 2 cm x 1 and half cm x bone deep along with fracture of left leg front upper part about 3 cm below injury No.16." Injury No.18 was a "contusion 3 cm x 2 cm with fracture of under line patella of left knee cap". Injury No.19 was a "swelling 10 cm x 8 cm front of left thigh lower part along with fracture of underline bone". These 4 injuries were grievous in nature and caused by blunt weapon. The death was due to shock and haemorrhage as a resuIt of injuries I6 to 19 which were sufficient in ordinary course of nature to cause death. Time between injuries and death was about one hour and post mortem was conducted in about 26 hours of death.
PW 10 Dr.Muhammad Akhtar Hussain Chatha on 2.10.1982 medically examined Mst. Irshad Bibi PW and noted 3 simple blunt weapon injuries of about 20 hours duration on her person.
PW11 Dr.Khalid Mahmood at 10.30 A.M. On 2.10.1982 medically examined Shaukat Ali PW and noted 13 blunt weapon simple injuries of various dimensions on different parts of his person.
3. S.I. Amjad Karim PW14 during inspection of the place of occurrence on 2.10.1982 collected blood stained earth from the place of occurrence.
All the accused were arrested on 5.11.1982.
On 10.11.1982 Munir Ahmad accused got recovered unlicensed gun P.2 vide memo Ex.PG; Barkat Ali accused got recovered Balam P3 vide memo Ex.PH; Nazar Ali accused got sota P4 vide memo Ex.Pl, Nazir accused got recovered revolver (not marked) vide memo Ex.PJ and Idrees accused got recovered Sota P5 vide memo Ex.PK in presence of Muhammad Siddique PW2, S.I. Amjad Karim PW 14 and Rasul Bakhsh PW not examined.
ON 19.11.1982 Muhammad Boota accused got recovered Sota P.6 vide memo Ex.PL in presence of Muhammad Siddique PW2, Amjad Karim PW 14 and Nazar Hussain PW 4.
Balam P3, Sota P4, Sota P5 were found stained with human blood vide report of Chemical Examiner Ex.PM and that of Serologist Ex.PO.
The accused were challaned after completion of investigation.
4. In support of its case prosecution examined 14 witnesses in all. Muhammad Siddique PW2, Faqir Muhammad PW3, Nazar Hussain PW4, Shaukat Ali PW12 (injured) and Mst. Irshad Bibi PW 13 (injured) were examined as eye witnesses of the occurrence. Abdul Rashid and Balqis, two eye witnesses named in FIR were given up. The recoveries of crime weapons were witnessed by PW2 Muhammad Siddique. The medical evidence was furnished by PW5 Dr. Anjum Javed. PW10 Dr.Muhammad Akhtar Hussain Chatha and PW 11 Dr.Khalid Mahmood as given in detail above. The case was investigated by S.I. Amjjad Karim PW14. The evidence of rest of the witnesses was of formal nature.
5. The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. They made statements on oath in rebuttal as well.
The learned Additional Sessions Judge, Gujranwala placed reliance on the prosecution evidence and vide judgment dated 19.12.1985 sentenced Barkat Ali 50, Muhammad Boot 56, Muhamihad Idrees 25 and Nazir 60 to imprisonment for life and fine of Rs.2000/- each or in defauIt one year R.I.
Under section 302/34 PPC. He directed them to pay Rs.3000/- each as compensation to heirs of the deceased or in defauIt six months R.I. He further sentenced these four accused-appellants to fine of Rs.1000/- or in defauIt six months R.I. Each on two on two counts under section 323/34 PPC. They were ordered to pay Rs.2000/- each as compensation to Shaukat Ali and Irshad Bibi PWs or in defauIt to suffer six months R.I.Munir Ahmad 45 and Nazar Ali 30 accused were acquitted by the same judgment.
6. I have heard the learned counsel appearing on behalf of the appellants and have perused the record. Munir, Barkat Ali and Boota accused are real brothers interse. Idrees is son of Nazir accused and Nazar is son of Boota accused. Nazir accused is cousin of Barkat Ali accused.
Siddique and Nazar Hussain PWs. Are brothers interse. Waris deceased and Shaukat PW are sons of Siddique PW. Irshad Bibi PW is mother of Waris deceased. Faqir Muhammad PW was not related to the deceased.
The motive in this case was stated to be that Shaukat Ali PW was suspected of having illicit relation with Mst. Nasim Akhtar, a daughter of Munir Ahmad accused since about 1 1/2 years before the present occurrence. It is in evidence that Shaukat Ali PW12, employed in Army had come to village on leave about one month and nine days prior to this occurrence. It is also in evidence that the house of Munir Ahmad accused adjoined the house of Mu?- - .Nad Siddique and Shaukat Ali PWs in same street. There is no evidence that during this period of one month and nine days there was any fight or quarrel between the parties on account of the illicite relations between Shaukat PW and Mst. Nasim Akhtar aforesaid. It was stated in the FIR that the parties had quarrelled on two or three earlier occasions on account of the said illicit relations. The matter was settled on account of intervention of respectables of the village. However, no one of those respectables was examined as witness during the trial. In my view prosecution has failed to prove motive against the accused.
The prosecution case is that the witnesses were proceeding to Gujranwala when they were surprised by Barkat Ali etc. Accused in the Way. According to Muhammad Siddique PW2 "Waris was to come to Gujranwala" and they just accompanied him. Nazar Hussain PW4 stated that "on the day of occurrence myself, Shaukat and Waris were coming to Gujranwala to do labour. It was the first day that we were going to Gujranwala to do labour". Shaukat PW12 stated that he and his companions were proceeding to Gujranwala to make some purchases. The statements of witnesses were discrepant on the point of the reasons of their visit to Gujranwala. There is no evidence to indicate that the accused persons knew that Waris Ali deceased, Shaukat Ali PW and others were likely to proceed to Gujranwala on the day of occurrence. I am, therefore, not inclined to accept the prosecution case that the accused were sitting in ambush to launch an attack on the complainant party. It is in evidence that both the parties resided close to each other in one street. If the accused had intended to commit the present crime they could have taken a chance at some other occasion and at some other place.
7. The medical evidence would show that Shaukat PW12 received 13 injuries on his person. All injuries were by blunt weapon and simple in nature, These were not on vital parts of the body. It was stated by Shaukat Ali PW that he remained in hospital for 22 days. This fact is not supported by any medical evidence/ certificate. There is no evidence to show that he was incapable of pursuing his normal vocation of life during these days. The appellants were, therefore, rightly convicted under section 323/34 PPC for causing injuries to Shaukat Ali and Irshad Bibi PWs.
According to medical evidence all the injuries on the person of Waris Ali deceased were on non vital parts of the body. Six of those injuries were by sharp edged weapon and simple in nature.
Injuries no.16, 17, 18 and 19 were on left thigh and leg not on vital part of the body. It is in evidence that two of the accused were armed with fire arms but in spite of that no fire arm injury was found on the dead body of Waris or on the person of any of the witnesses. These facts would indicate that the accused only wanted to be labour Waris deceased and Shaukat Ali PW and had no intention to commit murder. Nazir accused was armed with pistol. As staled above no one received fire arm injury during the occurrence. The immediate motive is also not known which means that the prosecution has suppressed some facts during trial. The occurrence seems to have taken place all of a sudden. I find some force in the contention on behalf of the appellants that the accused could only be convicted and sentenced for causing grievous injuries to Waris deceased against whom they had no direct motive.
Nazir appellant was armed with pistol. As stated above no one received fire arm injury during the occurrence. His presence at the time of occurrence, therefore, seems doubtful.
8. As a resuIt of above discussion this appeal on behalf of Nazir son of Muhammad Boota accused- appellant is accepted. He is acquitted from all charges. He shall be released from prison forth-with, if not required in any other case.
Barkat Ali, Muhammad Boota and Muhammad Idrees are acquitted from the charge under section 302/34 PPC and instead are sentenced to 7 years R.I. And fine of Rs.2000/- or in defauIt one year R.I.
Each under section 325/34 PPC. They are directed to pay Rs.3000/- each as compensation to heirs of Waris Ali deceased and in defauIt to suffer six months R.I.Each. Their conviction and sentence under section 323/34 pPC is maintained. This appeal on their behalf is dismissed subject to above modification.