1. ' Bahawal Bakhsh (60), Rehmat Khan (72), Lal Khan (70), Ghulam Qadir (40) and Ghulam Rasool
(50) were sent up for trial by Police Station Jalalpur Jattan, District Gujrat, for offences under section 302/148/149/365, P.P.C. For causing the death of Muhammad Yousuf. Sessions Judge, Gujrat, vide his judgment dated 17-8-1987, convicted all the accused and sentenced each of them under section 302/149, P.P.0 to imprisonment for life and a fine of Rs,6,000 each or in default one year's R.I. Each. They were also sentenced under section 365, P.P.C. To 5 years' R.I. Each and a fine of Rs,2,000 each or in default six months' R.I. Each. They were also sentenced to 2 years' R.I. Each, for offences under section 148, P.P.C. All the sentences were directed to run concurrently. The convicts were given the benefit of section 382-B, Cr.P.C. The accused have appealed against their convictions and sentences. The complainant has also filed a revision seeking enhancement in their sentences. Both the matters will be disposed of by this judgment.
2. The prosecution story in brief as disclosed in Exh.P.B., is that on 3-4-1986, at about 4 p.m.
2. Muhammad Latif first informant with Muhammad Yousuf was coming back from Gujrat after attending the Court. When they reached near the village, Muhammad Latif sat in the fields to ease himself and his nephew Muhammad Yousuf continued towards the village. When Muhammad Yousuf reached near the house of Ghulam Rasool, suddenly all the accused mentioned above armed with Sotas except Ghulam Qadir who were armed with .12 bore gun came out of the said house. Rchmat Khan accused raised a Lalkara whereupon Lal Khan accused gave a Sota blow on the right leg of Muhammad Yousuf who fell down. Second blow was given by Ghulam Rasool accused which landed on the left leg of Muhammad Yousuf. Bahawal Bakhsh accused also gave sota blow on the left leg of Muhammad Yousuf which was followed by Rehmat Khan accused whose blow landed on the right leg. Thereafter the accused persons started giving him indiscriminate beating. Ghulam Qadir accused kept on firing with his gun in the air. Muhammad Latif first informant raised alarm which attracted Abdur Razzaq and Abdus Sattar P.Ws. Who also witnessed the occurrence. Thereafter the accused persons dragged Muhammad Yousuf in injured condition inside the house of Ghulam Rasool accused and started beating him there. The eye- witnesses could not go near the said house because of fear. Muhammad Latif first informant sent his nephew Abdus Sattar to Gujrat to inform his uncle Muhammad Alam about the incident. The first informant and Abdur Razzaq remained at the spot. The accused persons after giving beating to Muhammad Yousuf started guarding the house where Muhammad Yousuf was confined.
3. ' The motive for the occurrence was a history of criminal litigation between the parties spread over for a period of 10/11 years.
3. Complaint, Exh.P.B. Was lodged by Muhammad Latif P.W.8 on 3-4-1986, at 6-30 p.m., in the village at the spot. It was recorded by Muhammad Baqir, A.S.I. P.W.11, F.I.R. Exh.P.W.1 was drawn on 3-4-1986, at 7 p.m. At the Police Station by Muhammad Abbas, P.W.2.
4. Muhammad Baqir, A.S.I. After recording complaint Exh.P.B, sent the same to the Police Station for registration of the case. Thereafter, he prepared injury statement, Exh.P.H., of Mohammad Yousuf and sent him to the hospital for treatment. He recorded the statements of the witnesses under section 161, Cr.P.C. The blood-stained earth was secured from the spot, vide memo Exh.P.G. He got prepared the site plans, Exhs.P.C. And P.C./1 from the draftsinan and gave his notes with red ink thereunder. On the same day he received information about the death of Muhammad Yousuf, therefore, he reached the hospital and prepared inquest report, Exh. P.K. And sent the dead body to the mortuary for autopsy. Thereafter the investigation was handed over to Dilawar Ali, Inspector S.H.O., who was also transferred, and the investigation was taken over by Safdar Inayat, Inspector S.H.O., P.W.10, on 10-5-1986. After usual investigation he challaned the accused.
4. ' On 3-4-1986, Dr. Tahir Rashid, Medical Officer, Aziz Bhatti Shaheed Hospital, Gujrat, examined Muhammad Yousuf and found the following injuries:
(1) Abrasion with bruise measuring 8 c.m. x 4 c.m. On the right outer aspect of knee joint.
(2) Bruise measuring 5 x 2 c.m. On the medial malleolous of left leg.
(3) Bruise measuring 12 x 5 c.m. On the left outer aspect of left knee joint.
(4) Bruise measuring 5 x 2 c.m. Horizontally running on the front of left leg 10 c.m. Below the knee joint.
(5) Bruise measuring 3 c.m. x 2 c.m. On the left leg 4 c.m. Above the lateral malleolous of left leg.
(6) Bruise 3 x 2 c.m. On the left outer aspect of left lower leg 15 c.m. Above the left latter malleolous.
(7) Superficial abrasion measuring 1/4 x 1/4 c.m. On the left upper aspect of thigh.
(8) 6 superficial abrasions each measuring 1/4 x 1/4 c.m. On the left dorsum of hand.
(9) Bruise measuring 5 x 2 c.m. On the left outer aspect of middle of forearm.
(10) Lacerated wound 4 x 2 c.m. With fractured end of bone lying outside on the right medial aspect of lower leg 9 c.m. Above the medial malleolous.
(11) Lacerated wound 3 x 2 c.m. x hone deep on the left medial aspect of middle of leg. The underline bone was fractured.
(12) Lacerated wound 2 c.m. x 1/4 c.m. x bone deep on the left medial aspect of left leg 3 c.m. Above the lateral malleolous.
(13) Superficial abrasion 1/2 x 1/2 c.m. On the left outer aspect of left forearm. 11 c.m. Above the wrist joint.
(14) Superficial abrasion 1/2 x 1/4 on the outer aspect of left elbow joint.
5. 15) Bruise measuring 10 x 5 c.m. On the dorsum of right terminal phalanx of thumb.
(16) Superficial abrasion 1/4 x 1/4 c.m. On the dorsum of right hand towards the thenar eminence.
(17) Superficial abrasion 1/4 x 1/4 c.m. On the dorsum of right terminal phalanx of thumb.
(18) Superficial abrasion 1/2 x 1/4 c.m. On the back of middle of forearm.
(19) Superficial abrasion 1/2 x 1/4 c.m. On the lateral aspect of right forearm 6 c.m. Below the elbow joint.
(20) Bruise measuring 10 c.m. x 4 c.m. On the right back of chest running obliquely down.
(21) Bruise measuring 5 c.m. x 3 c.m. On the left back of chest running obliquely towards the vertebral column.
(22) Bruise measuring 3 x 2 c.m. On the back of right of upper chest.
(23) Bruise measuring 5 x 2 c.m. On the right outer aspect of buttock.
6. ' All the injuries were caused with blunt weapon. Injuries Nos.4, 10 and 11 were grievous while injuries Nos.3, 7, 8, 9, 13, 14, 16, 17, 18, 19 and 23 were simple. The rest were kept under observation.
7. ' On 4-4-1986, at 9 a.m. He also performed post-mortem examination on the dead body of Muhammad Yousuf and found 24 injuries on his person. All the injuries were caused with blunt weapon. Injuries Nos.10, 11, 12 and 24 were sufficient to cause death because of excessive loss of blood from the body and head injury leading to irreversible shock.
8. ' The prosecution in support of its case produced 11 witnesses in all. P.W.1, Noor Muhammad, identified the dead body. Muhammad Abbas, A.S.I. P.W.2, recorded the formal F.T.R. Exh.P.B/1 on 3-4- 1986. Akhtar Naqash, Draftsman, P.W.5 prepared site plans, Exh.P.C. And P.C./1 on the direction of the police and the pointation of the witnesses. Dr. Muhammad Rashid, P.W.6, examined Muhammad Yousuf on 3-4-1986 and on 4-4-1086 conducted the postmortem examination. Muhammad Asghar, P.W.7 witnessed the taking of bloodstained earth in front of the house of Ghulam Rasool accused and signed memo Exh.P.G. As well. The eye-witness account was furnished by Muhammad Latif and Abdur Razzaq, P.Ws. 8 and 9 respectively. Safdar Inayat, Inspector S.H.O.
9. P.W.10, challaned the accused. Muhammad Baqir, A.S.I. P.W.11, investigated the case and recorded complaint Exh. P.B.
10. ' The District Attorney tendered in evidence reports of the Chemical Examiner Exh.P.L. And of the Serologist, Exh.P.M., and gave up some of the witnesses.
11. ' The accused persons at the conclusion of the prosecution evidence were examined under section 342, Cr.P.C. Without oath wherein they refuted the prosecution allegation and pleaded innocence.
12. Ghulam Qadir accused in answer to a question stated that litigation of the deceased was going on with one Fazal Ahmed in which two of his co-accused appeared as prosecution .Witnesses. He further stated that the accused persons and some others were declared innocent by the police,'therefore, Abdur Razzaq filed a complaint which was still pending. He also pleaded false involvement because of enmity and the witnesses being inter-related.
13. ' It is contended by learned counsel for the appellants that the prosecution had failed miserably to prove its case against the appellants. Contends that none of the eye-witnesses was present at the spot. Submits that the behaviour of the eye-witnesses was so unnatural that no reliance on their statements could be placed. Argues that in any case the enmity of the witnesses with the appellants was established beyond any doubt, therefore, the eye-witnesses should not have been relied upon without corroboration which was not available. The contentions were opposed by learned counsel for the State as well as learned counsel for the complainant. According to the learned counsel for the complainant there were as many as 24 injuries on the person of the deceased out of which live were grievous. Submits that it was a daytime occurrence therefore, there could not be the possibility of mistaken identity or of substitution because the dead body was recovered from the house of the appellants.
14. ' I have heard learned counsel at length and gone through the evidence with their assistance. The prosecution in order to bring home the guilt of the appellants mainly relied upon the statements of Muhammad Latif and Abdur Razzaq, P.Ws.8 and 9 respectively, who were the eye-witnesses. T have carefully gone through the statements of both the witnesses. Muhammad Latif P.W.8 was uncle of Muhammad Yousuf and was accompanying him while going to the village; he was left behind because he sat in the fields to ease himself. Later on, when he was following Muhammad Yousuf he witnessed the occurrence. According to him he saw the appellants giving blows with their Sotas and thereafter they carried him inside the house of Ghulam Rasool appellant. A perusal of the statement of this witness indicates that his behaviour throughout had been extremely unnatural. Ile saw his nephew being given repeated blows by the appellants yet he did not do anything to rescue him from the clutches of the appellants. According to his evidence when the appellants took Muhammad Yousuf inside the house he just kept on standing at the spot for one and half hour as a silent spectator. He neither went to the village to bring people so that Muhammad Yousuf could be rescued nor went to the Police Station for getting help. To the contrary he sent a witness Abdus Sattar P.W. To Gujrat for informing his uncle regarding the incident. This on the face of it is most unnatural. It has also come in the evidence that Muhammad Yousuf had a licensed gun at home but no effort was made by the witness to bring the said gun in order to rescue Muhammad Yousuf.
15. Muhammad Latif P.W. Also made material improvements in the prosecution case. In the F.I.R. He had stated that after injuring Muhammad Yousuf the accused persons dragged him inside their house and gave further beating but in Court he stated that Muhammad Yousuf injured was lifted and taken inside the house. This improvement was made in order to bring his statment in conformity with the medical evidence because the doctor had not noticed any dragging marks on the body of Muhammad Yousuf deceased. He also stated that after injuring Muhammad Yousuf, all the accused persons remained inside the house and kept on raising Lalkaras till the police arrived at the spot. This part of the statement had been belied by the investigating officer. According to him the appellants had already run away when he came to the spot. Similarly, the witness stated that Ghulam Qadir appellant was armed with a gun and kept on firing in the air in order to scare away the witnesses from interfering. It is also in evidence that he was carrying a single barrel gun yet sot a single empty was secured from outside the house nor from inside the house.
16. ' As far as Abdur Razzaq an eye-witness is concerned, it has come on the record that he had enmity with the appellants. He was relative of the deceased. His conduct was also very unnatural like Muhammad Latif P.W. He had also made material improvements for which he was duly confronted. It is also in evidence that blood-stained earth was secured from outside the house only. In this regard the opinion of the doctor becomes material because according to him the death had occurred because of loss of blood yet the investigating officer did not find any blood inside the house of the appellants. No recovery from any of the appellants was effected which could possibly corroborate the eye-witnesses. As far as Abdur Razzaq P.W. Is concerned, admittedly he came on the alarm raised by Muhammad Latif P.W. And witnessed the occurrence when it had already started. In these circumstances what transpired between the appellants and the deceased was not seen by any one, therefore, the origin of fight is not known.
17. The prosecution has been able to prove the recovery of Muhammad Yousuf deceased from the courtyard of the appellants who, admittedly, was in an A injured condition for which no explanation has been given by them as to how he was found lying in their house. As far as Ghulam Qadir appellant is concerned, the only role ascribed to him is of being present and firing in the air. In the absence of recovery of gun or of the empty from the spot, I hold his involvement B is doubtful. In these circumstances, giving him the benefit of doubt, I accept his appeal and set aside his conviction. He shall be released from custody forthwith if not required in any other case.
18. ' As far as the remaining appellants are concerned, the recovery of Sotas may not be very material.
19. The fact that the injured was found inside the house of the appellants having 24 injuries; all were caused with blunt weapon, would be a sufficient corroboration of the eye-witnesses. Since I have already held that the origin of fight is shrouded in mystery, therefore, the application of section 302, P.P.C. Would be doubtful. A perusal of the medical evidence also indicates that the injuries caused to the deceased were on his non-vital parts except injury No,24 which was not noticed by the doctor when he examined the injured but surprisingly at the time of post-mortem examination, this injury was found on his person. Since all the injuries were on the non-vital parts of the body of the deceased, therefore, I hold that the appellants' case would fall under section 304, Part I, P.P.C.
20. ' For what has been discussed above, I give the benefit of doubt to Ghulam Qadir appellant and acquit him. He shall be released forthwith if not required in any other case. The appeal of the remaining appellants is dismissed but their sentences are converted from section 302/149, P.P.C. To section 304, Part I, P.P.C. And the same is reduced to five years' R.I. Each. The sentences of fine shall, however, be maintained. The conviction under section 365/148, P.P.C. Is, however, maintained. All the sentences shall run concurrently. They shall also be given the benefit of section 382-B, Cr.P.C.
21. The fine if recovered the whole of it shall be given to the legal heirs of the deceased under section 544-A, Cr.P.C.