RASHID AZIZ KHAN, J. -Mehtab Shah, Nazar Hussain Shah, Nazim Hussain Shah, Mazhar Hussain Shah, Fazil Hussain Shah, Lai Shah, Mst. Zakriya Bibi, Hasham Shah and Ahmed Shah accused were sent up for trial by Police Station Qadirabad, for an offence under sections 302/148/149 PPC, for committing the murder of Nazar Shah and murderous assauIt on the witnesses. The trial was held by an Additional Sessions Judge, Gujrat, who vide his judgment, dated 11-3-1985, acquitted Hasham Shah, Ahmed Shah and Mst.Zikriya Bibi. Lai Shah, Mehtab Shah, Nazar Hussain Shah and Nazim Hussain Shah accused were found guiIty for an offence under section 304 Part-1 PPC and each of them was sentenced to 10 years R.I. And a fine of Rs.5,000/- each or in defauIt thereof one year R.I.
Each. Mazhar Hussain Shah and Fazil Hussain Shah accused were acquitted under section 302 PPC but were convicted for an offence under section 323 PPC for causing simple hurt to the witnesses.
Out of the above said convicts Lai Shah and Mehtab Shah alone have appealed against their conviction and sentence. The complainant has also filed a revision seeking the enhancement of sentence qua the convicts. The complainant has also filed another revision challenging the acquittal of the respondents for an offence under section 302 PPC. All these matters shall be disposed of by this judgment. .
2. The prosecution story in brief as given by the first informant Mst.Ghulain Sughran is to the effect that she was resident of Village Syed. On 21-1-1983, at about 4 P.M.,her sister's son,Nazar Shah aged about 18/19 years along with his relative Zafar Shah came out of his house to answer the call of nature. They had hardly covered a little distance and when they reached near the fields of Abbass Ali Shah, Mazhar Hussain shah accused armed with a hatchet, his brothers Nazar Hussain Shah and Fazil Hussain Shah both armed with sotas , Mehtab Shah, Nazim Hussain Shah, Ahmed Shah and Lai Shah all armed with sotas , came out of the house of Lai Shah accused while raising lalkaras.
SimuItaneously, Lai Shah and Mst.Zikriya Bibi came from the other side of the lane while armed with sotas . Nazim Hussain Shah gave first blow on the head of Nazar Shah; Fazil Hussain Shah gave a sota blow to Zafar Shah PW on his shoulder. It was followed by Nazar Hussain Shah on the back of his head; whereupon he fell down.
Mehtab Shah and Lai Shah gave a sota blow to Nazar Shah on his head while he had fallen down, as a resuIt of the blows Nazar Shah died at the spot. The first informant along with her sister Mst.
Ghulain Sughran came running towards the deceased when Mazhar Hussain Shah deaIt with a hatchet blow on the head of the first infomant which was followed by Mst.Zakriya Bibi who gave a Sota blow on the right temporal bone of the first informant. Mehtab Shah gave a sota below on the right fore-arm of Mst.Sughran Bibi.Bccause of the sota blows, the first informant and her sister Mst.Sughran Bibi both fell down;whereupon all the accused belaboured them with their respective weapons. The motive as stated in the iFIR is that about two months before the occurrence Nazar Shah had divorced Mst.Irshad Bibi, a niece of the first informant, regarding which litigation was pending between the parties and because of the said litigation the accused committed the present offence.
3. Complaint, Exh.PG, was got recorded by Mst. Ghulam Zohra,PW-4, on 21-2-1983, at 8 P.M. In Police Post Bhcrowal, which was recorded by Muhammad Ayub, Hcadconstable,PW-11. Formal FIR, Exh.PG/1 was recorded on the same day at 9.30 P.M. By Hamid Mahmoodul, PW-10.
Muhammad Ayub, Headconstable PW-11 after recording complaint,Exh.PG, proceeded to the spot and recorded the statements of the witnesses. He prepared injury statement Exh.PJ and inquest report, Exh.PK of Nazar Shah deceased. He also prepared injury statements of the injured witnesses.
Thereafter, he sent the deadbody along with the injured witnesses to the Hospital, for post-mortem examination and for treatment of the injured PWs.
Thereafter, the investigation was taken over by Hamid Mahmoodul, PW-10, who secured blood stained earth from the place of incident, vide memo Exh.PI. After usual investigation he challaned all the accused.
Dr.Nazir Ahmed Anwar, Senior Medical Officer, Civil Hospital, Mandi Bahauddin, PW-1, on 22-1-1983, at 9.10 a.m., medically examined Mst.Sughra Bibi and found two contusions on her person. Both the injuries were declared simple which were caused by a blunt weapon.
On the same day, at 9.15 a.m., he examined Zafar PW and found three simple injuries caused with blunt weapon.
On the same day at 9.25 a.m., he medically examined Mst.Ghulam Zohra PW and found 11 contusions on her person. Injuries No.1,8 and 10 were kept under observation but later on were declared as simple.
All the injuries were caused with blunt weapon and were simple in nature.
On 22-1-1983, at 10 a.m., he conducted post-mortem examination on the deadbody of Nazar Shah and found the following injuries:-
(1) A contused wound 3 cm x 1/2 cm x bone deep over the anterior part of the head with fracture of skull underneath, the fracture line was 5 cm long.
(2) A contused wound 4 cm x 1/2 cm x bone deep over the top of the head with fracture of skull underneath. Fracture line being 4 cm long.
(3) A contused wound 3 1/2 cm x 1/2 cm x bone deep over the left side of the skull.
(4) A contused wound 5 cm x 1/2 cm x bone deep over the right side of the skull, with fracture of the skull 7 cm long underneath.
(5) A contused wound 2 cm x 1/2 cm x bone deep over the back of the head.
(6) A contused wound 3 cm x 1/2 cm x bone deep adjoining injury No.5.
The death in his opinion had occured due to intracranial haemorrhage and compression of the brain due to all the injuries. All the injuries were sufficient to cause death in the ordinary course of nature and were caused with blunt weapon.
On 29-1-1983, at 2 P.M. He also examined Nazar Hussain Shah accused and found a contused wound on his head which was declared simple.
4. The prosecution in support of its case produced 12 witnesses in all. PW-1, Dr.Nazir Ahmed Anwar, conducted the post-mortem examination as well as examined the injured persons. Muhammad Nawaz Patwari,PW-3 prepared the site plan, Exh.PF and PF/1 of the place of occurrence on the pointation of the PWs. The eye witness account has been furnished by Mst.Ghulam Zohra, Zafar Shah and Mst.Sughran Bibi,PWs 4,5 and 7 respectively.Thc case was investigated by Hamid Mahmood,SI,PW-10 and he challaned the accused. Muhammad Ayub, ASI, PW-11 had partly investigated the case and recorded the statements of the witnesses. All the accused were arrested on 27-1-1983 by Asghar Ali, SI, PW-12.
5. At the conclusion of the prosecution evidence, all the accused were examined under section 342 Cr.P.C. They had denied the prosecution allegation and pleaded innocence. All the accused stated that the present case was registered against them because of their enmity with the PWs who were closely related.
It is contended by learned counsel for the appellants that the occurrence took place at a distance of 15/20 karams from the village yet no independent person had been produced, therefore, the witnesses who are admittedly inimical and interested, may not be relied upon. Contends that on the same evidence three accused were acquitted, therefore, it may not be safe to rely upon uncorroborated testimony of the witnesses against the appellants. The contentions of learned counsel for the appellants have been controverted by learned counsel for the State as well as for the complainant.
6. I have learned counsel and perused the record. The motive as set up by the prosecution for the commission of the offence is that two months before the occurrence Nazar Hussain Shah accused had divorced his wife Mst.Irshad Bibi who was real niece of the first informant, Mst.Ghulam Zohra and daughter of Mst.Sughran Bibi PW. The eye witnesses have stated this fact on oath in Court as well. In these circumstances, even if the act of divorce by the accused is accepted, it would not constitute motive on their part to commit the present occurrence. If at all there was any grievance it had to be on the complainant side whose niece was divorced, therefore, I hold that the learned trial Court has rightly not relied upon the evidence of motive.
7. The ocular account has been furnished by Mst.Ghulam Zohara, Mst.Sughran Bibi and Zafar Shah.
Mst. Ghulam Zohra was real sister of the mother of the deceased and Mst.Sughran Bibi was the mother of the deceased. Zafar Shah, PW-5, a relation of the deceased. All of them had given a detailed account of the occurrence the way it transpired. They were cross-examined at length but the defence could not bring on record anything to indicate that they were not present at the spot or they have falsely involved the appellants. All the witnesses have specifically named the appellants as well as attributed an overt act of causing injuries to the deceased. The presence of the eye witnesses at the spot even otherwise would be difficuIt to disbelieve for the reasons that all of them were injured. In this respect, their testimony finds corroboration from the medical evidence.
The number of injuries on the person of PWs as well as the deceased also corroborates the testimony of the eye witnesses because those injuries could not be caused by one'or two persons.
For what has been discussed above, 1 hold that the statements of the eye witnesses docs inspire confidence and they can safely be relied upon.
8. As far as the nature of the offence which has been committed by the appellants is concerned, 1 agree with the finding of the learned trial Court that the motive as set up by the prosecution, cannot be relied upon. The occurrence took place in a thorough fare where the chance of both the parties encountered each other, which developed into a sudden fight, cannot be ruled out; therefore,! Hold that the learned trial Court had rightly convicted the appellants under section 304 Part. I PPC.
The contention of learned counsel for the complainant that the learned trial Court has not awarded compensation which is mandatory requirements of law, to the legal heirs of the deceased, has some force. Therefore, while dismissing the appeal of the appellants, I direct that the fine of Rs.5,000/- each awarded to the appellants, if recovered, the whole amount shall be given to the legal heirs of the deceased as compensation.
9. For the reasons discussed above I hold that the eye witnesses are truthful and can safely be relied upon. Therefore the appeal fails which is accordingly dismissed. For the same reasons, the revision petitions of the complainant also fail which are accordingly dismissed. They are on bail; they shall be taken into custody to serve the remaining period of their sentence. They shall be given the benefit of Section 382-B Cr.P.C.