'The instant appeal has arisen out of the judgment dated 12-12-1987 pronounced by the learned Additional Sessions Judge, Bahawalnagar, who had convicted the appellants under section 302/149, P.P.C. And has awarded them life imprisonment and a fine of Rs,5,000 each. In default of the payment of this fine, they were directed to suffer two years' R.I. Each. The appellants were also convicted under section 307/149, P.P.C. And were awarded 10 years' R.I. Each and a fine of Rs,1,000 each or to suffer R.I. For one year in default thereof. No conviction was recorded under section 148, P.P.C. The sentences were ordered to run concurrently.
2. The brief facts, which led to the commission of this crime, in substance, are that Shera, Bashir, Noor Mohammad and Nazar Mohammad are the sons of Ghulam, who lived in village Said Ali, Police Station Takht Mahal, Tehsil and District Bahawalnagar. Shera one of the appellants had been married to Mst. Manzooran the daughter of Moman. Reciprocally Mst. Najjan daughter of Ghulam accused was married to Hanif son of Moman. One and a half months, prior to this incident, on account of some estrangement, both Mst. Manzooran and Mst. Najjar had left for their parental homes. Mst. Manzooran had three sons from Shera. Shera went to the house of Moman and brought his two elder sons With him. Subsequently, Shera went to bring his youngest son who was one month old at that time. It was resented to by Mst. Manzooran and Shera tried to forcibly snatch the infant. With the intervention of the other inmates of the family, Shera left for his home after having been upbraided by the relatives of Mst. Manzooran. Moman, Mohammad Yar, Ahmad Yar, Hanif son of Moman, Mst. Lalan wife of Moman and Mst. Manzooran daughter of Moman and wife of Shera went out to reap wheat crop. In the meantime, all the appellants while armed with Lathis came there. Shera and Bashir gave Lathi blows to Moman, whereas Muhammad Yar, Mst. Lalan and Ahmad Din were injured by Ghulam, Noor Mohammad and Nazar Mohammad with their respective lathis. Moman and Muhammad Yar became unconscious and succumbed to their injuries later on.
3. Dhalla the nephew and son-in-law of Moman went to lodge the report at Police Station Takht Mahal on the same day at about 11-00 a.m. When the incident had taken place at 8/9-00 a.m. The report was lodged under sections 307, 148 read with section 149, P.P.C. Which was converted under sections 302/149 and 148, P.P.C. On the death of Moman and Muhammad Yar.
4. The police went to the spot and collected blood-stained earth and prepared the injury statements in respect of the injured persons and sent the injured persons to the hospital. Dr. Capt.
Abdul Majid, P.W.4 had conducted the autopsy on the dead body of Moman and had listed the following injuries on his -corpse:-
(1) One lacerated wound 1-1/4" x 1-3/4" x 1/6" x bone deep on the back of the head about 3/4" above the occiput.
(2) An area of 3" x 2" swollen in the left side of the face 1/4" x below the outer angle of the left eye.
(3) An area of about 6" x 4" swollen on the back of right forearm about 1/2" above the wrist joint. The direction was oblique.
(4) An abrasion 1/2" x 1/4" on the back of right index finger.
(5) An area of about 7" x 4" swollen on the back of right side of the chest. The direction was oblique.
' This medical expert has opined that there was a depressed fracture of right and left occipital bones with fracture of right and left prietal bones, and injury No,1 was sufficient to cause death in the ordinary course of nature.
5. The same doctor had conducted autopsy on the dead body of Mohammad Yar and had reported the following injuries on his corpse:-
(1) One lacerated wound 1-3/4" x 1/6" x scalp deep starting from the left frontal region and extending obliquely towards the right frontal region about 3-1/2" above the right eyebrow. The direction was oblique. The clotted blood was present on the right ear and both the nostrils.
(2) An area of about 3" x 2" swollen on the front of the left leg about five inches above the ankle joint. The direction was oblique.
(3) An abrasion mark 1/4" x 1/6" on the front of right leg about 6" above the ankle joint. The direction was oblique and the area surrounding the wound was swollen.
' There was a fracture of left and right frontal bones and left and right parietal bones and death of Muhammad Yar occurred on account of injury No,1 which was sufficient to cause death in the ordinary course of nature.
6. The same doctor had examined Ahmad Din P.W. And had found the following injuries on his person:-
(1) One lacerated wound 3/4" x 1/6" x 1/8" on the right side of the forehead about 1-1/4" above the right eye-brow.
(2) One lacerated wound 1/2" x 1/6" x 1/8" on the right side of the forehead, about 1/4" below injury No,1
(3) An abrasion mark 1/4" x 1/4" on the right cheek.
(4) Multiple abrasion marks on an area of about 3" x 2" on the front of the right side of the chest about 1-1/2" below the right nipple.
7. Shera and Ghulam accused were examined on the same day and the following simple injuries were found on the person of each of them:- Injuries of Shera
(1) One lacerated wound 2 1/2" x 2-1/2"x 1/4" x scalp deep on the prietal region and extending obliquely towards the right frontal region about 2/1/2" above the right eye-brow.
(2) One lacerated wound 2" x 1/4" x bone deep on the left prietal region about 3" above the left ear.
The direction was oblique.
(3) One linear abrasion mark 1-1/2" x 1/6" on the medial aspect of right forearm about 1" above the wrist joint. The direction was oblique.
(4) An abrasion mark 3/4" x 1/6" on the back of left forearm about 4" below the elbow joint. The direction was oblique.
(5) One contusion mark 2" x 3/4" on the top of the right shoulder joint. The direction was oblique.
(6) An abrasion mark 1/4" x 1/4" on the front of the left knee joint.
(7) An abrasion mark 1/4" x 1/4" on the back of left shoulder joint. Injuries of Ghulam
(1) One lacerated wound 1/4" x 1/6" x bone deep on the left side of the forehead about 1/2" above the left eye-brow. The direction was oblique.
(2) One lacerated wound 1" x 1/6" x scalp deep on the left prietal region about 2-3/4" above the left ear. The direction was oblique.
(3) An area of about 1" x 3/4" swollen and the lateral aspect of right forearm about 1/2" above the wrist joint. The direction was oblique.
(4) An area of about 4" swollen above the knee joint. The direction was oblique.
8. Mst. Lalan was examined by the lady doctor and according to Exh.P.K., he had received simple injuries.
9. The appellants were arrested on 25-4-1975 and the blood-stained shirt P.3 and blood-stained Chaddar P.4 were got removed from the body of Shera and was taken into possession vide memo.
Exh.P.B. Similarly on the same day, bloodstained Kurta P.5 and blood-stained turban P.6 of Ghulam accused were got removed from his body and taken into possession vide memo. Exh.P.C. On 26-4- 1975, Ghulam, Nazra, Shera and Bashir got recovered their blood-stained Lathis Exh.P.8 to Exh.P.11 respectively which were taken into possession separately vide memo. Exh.P.N., Exh.P.O. Exh.P.Q. And Exh.P.R. After the completion of the investigation, the challah of all accused was submitted and as a sequel to the impugned trial, they were awarded the aforementioned punishment. It may be noted that Ghulam and Nazra accused have died and the case against them abates under section 431, Cr.P.C.
10. Dhalla P.W.7 who is the nephew and son-in-law of Moman deceased has narrated the incident as stated in the F.I.R. He has depicted the motive for the commission of this crime and has corroborated that the incident took place when Shera came to have the infant from Mst.
Manzooran and was scolded by the inmates and then all the accused came there, where Moman and his family were reaping crop and they attacked and injured Moman, Mohammad Yar, Mst.
Lalan and Ahmad Din. According to him Moman and Muhammad Yar expired in the hospital. It was suggested to him whether the accused persons had received abrasions, he denied this fact.
11. Ahmad Yar alias Ahmad Din P.W.8 and Mst. Lalan P.W.9 have unanimously stated that Shera and Bashir started injuring Moman, whereas Nazar Mohammad, Noor Mohammad and Ghulam gave lathi blows to them and Muhammad Yar. Mst. Manzooran the wife of Shera appellant has explained the motive for the commission of this crime and has also endorsed the fact that Moman and Muhammad Yar were murdered by the accused whereas Mst. Lalan, and Ahmad Yar were injured by Noor Mohammad, Nazar Muhammad and Ghulam. Peeran P.W.12 has also supported the prosecution case by stating that the appellants have attacked Moman and others and Shera and Bashir gave injuries to Moman deceased whereas Nazra, Noora and Ghulam inflicted injuries to Muhammad Yar, Mst. Lalan and Ahmad Yar. He happens to be son-in-law of Moman deceased.
Mali P.W.13 has corroborated the statement of his fellow deponents and has submitted that he is brother-in-law of Moman deceased and there was no dispute between the parties according to his knowledge.
12. Goman P.W.15 has joined the investigation of this case and in his presence blood-stained earth was collected from the places where Moman and Muhammad Yar were injured, and it was made into a sealed parcel in his presence. The wooden pieces of Lathi Exh.P.12/1-3 were also taken into possession vide memo. Exh.P.V. In his presence. Khan Muhammad P.W.16 has corroborated the statement of Goman P.W.15 but he lives about 25 miles away A from the spot and reached the spot on the third day. Khan Muhammad P.W.16 is, therefore, not a reliable witness.
13. Bahawal Shah P.W.18 has witnessed the recovery of blood-stained clothes of Shera and Ghulam appellants. He does not remember how many days afterwards the police took these blood-stained clothes in his possession. The incident occurred on 25-4-1975 and this witness made a deposition on 25-8-1977 and it is not unnatural that memory of such persons fails to state with exactitude, when the blood-stained clothes were taken into possession.
14. Ghulam Mustafa P.W.19 had witnessed the recovery of Lathis from Ghulam, Nazra, Bashir and Shera. Qamar P.W.6 who is a relative of the deceased has also supported the factum of the recovery of blood-stained Lathis from the aforementioned appellants. He has stated that he had reached there two days after the death of Moman and in this manner Qamar Din was not expected to witness the recovery which had taken place on the next day of this incident. He is the real maternal-uncle of Muhammad Yar deceased.
15. Bashir, Nazra and Noor Mohammad pleaded to be innocent and have stated that they did not participate in this incident. Shera in response to questions No,4 and 5 explained as under:- Ans.
4. "It is incorrect. Before the occurrence we had reconciled with each other and I had sent my sister to the house of her husband and on the day of occurrence I along with my father Ghulam had gone to take Mst. Manzooran. Munshi Abdul Rehman was also accompanying us. Parents of Mst.
Manzooran refused to send her with us whereupon I took my sister Mst. Najjan with us and were coming back to our home when in the way Goman, Fareed, Baharoo, Moman and Mohammad Yar attacked tots and we acted only in self-defense. Actually the deceased persons were given blows by Goman, Fareed and Baharoo as they had old enmity as complainant's brother was murdered by Muhammad Yar prior to this occurrence and the deceased persons died in consequences of the injuries caused to them by the said persons."
Ans.
5. It is incorrect. Prior to the occurrence my sister was turned out by her husband while my wife Mst.
Manzooran had gone to her parents' house of her own accord. Later on we reconciled with each other and I had sent my sister Mst. Najjan to her husband's house. On the day of occurrence, I along with my father Ghulam, Munshi Abdul Rehman had gone to take my wife Mst. Manzooran in the house of the deceased persons but parents of Mst. Manzooran refused to send her with me whereupon we took our sister with us and were coming back to our home when in the way Muhammad Yar and Moman deceased alongwith Dhalla, Baharoo, Goman and Fareed attacked us and injured me and my father Ghulam. At that time Bashir, Nazar Muhammad, Noor Muhammad were not with us. Actually Dhalla complainant's real brother was murdered by Muhammad Yar deceased prior to this occurrence and they had enmity with each other. Moman and Muhammd Yar were actually given blows by Dhalla Baharoo, Goman and Fareed and were murdered by these people. We have been falsely implicated in this case."
' When asked as to how he was injured, he had stated that he and Ghulam were injured by the deceased persons, complainant and other P.Ws. Ghulam who is dead also took the same plea.
16. Both the parties are related inter se and Mst. Manzooran had been married to Shera son of Ghulam whereas Mst. Najjan was married to Hanif son of Moman. The estrangement between the spouses has been proved by the P.Ws. The matter flared up when Shera was upbraided, when he wanted to forcibly snatch his infant son from Mst. Manzooran. The motive for the commission of this crime has been proved.
17. As regards this incident, it took place in the field where Goman, Ahmad Yar, Mst. Lalan, Ahmad Yar and Mst. Manzooran were reaping wheat crop. According to the learned counsel for the appellants, they lived at a distance of three miles from the spot. All the injured P.Ws. Had unanimously stated that Moman was injured by Shera and Bashir, Ghulam Nazar and Noora had injured Muhammad Yar, Mst. Lalan and Ahmad Yar and Ahmad Din is the same person.
18. The recoveries of the blood-stained clothes of Ghulam and Shera and' Lathis from Nazra, Shera, Bashira and Ghulam have been proved.
19. The cardinal fact which has been argued in this case is that Ghulam and Shera were injured and their injuries were neither explained in the F.I.R. Nor at the trial and the story of self-defense should be believed. Kala v. The State 1987 SCMR 385 has been referred to in which the accused had sustained injuries and the plea of self-defense was based on the solitary statement of the accused, which was not entertained by the Courts below. It was adjudicated in the said precedent that a right of self-defense is set up, essence of case should be to ascertain as to who was aggressor and whether accused used more violence than was necessary. In this case, the appellants belong to a place which is at a distance of three miles from the spot and the incident did not take place in the house of the complainant party but took place in the wheat field. In their statements under section 342, Cr.P.C. Shera and Ghulam did not explain as to how they received injuries. There was no attempt to lodge a counter-case on the part of the appellants. They have gone armed with Lathis to the complainant party and in this manner the appellants can safely be branded as aggressors. The suppression of injuries by the complainant party is, thus of no use to them. The appellants constituted an unlawful assembly and in the common object of the said assembly, they committed rioting, double murder and launched the murderous assault on Ahmad Yar and Mst Lalan. They have rightly been convicted under sections 302 and 307 read with section 149, P.P.C. The sentence awarded to the appellants is also appropriate and shall be read as on each count. I, therefore, dismiss the appeal lodged by Shera, Bashir and Noor Muhammad. They were released on bail. They may be taken into custody and sent to jail to serve their remaining term of sentence. All of them are, however, extended the benefit of section 382-B, Cr.P.C. As observed above, this appeal to the extent of Ghulam and Nazar Muhammad stands abated under section 431, Cr.P.C.