' This appeal is directed against the judgment, dated 18-4-1987, by which Mr. M. Siddiq Javaid Chaudhry, Additional Sessions Judge, Toba Tek Singh, convicting:
(a) Muhammad Asghar appellant under section 302, P.P.C., sentenced him to imprisonment for life for having committed the murder of his co-villager Muhammad, Atiq
(b) Manzoor Ahmad -znd Mushtaq Ahmad appellants under section 324, P.P.C., sentenced each of them to two years' R.I, for having caused simple injuries to Munir Ahmad P.W. With sharp-edged weapon; and
(c) Muhammad Rashid accused under section 323, P.P.C., sentenced him to six months' R.I. For having caused simple injury with blunt weapon.
2. He, however, acquitted Muhammad Akhtar alias Akoo, Muhammad Akbar alias Bally, Rchmat Ali, Muhammad Ashraf alias Sain and Iftikhar Ahmad co-accused on benefit of doubt.
3. Aggrieved by this order, out of the four convicts, three have appealed and Muhammad Rashid convict having undergone the sentence has not challenged his conviction and sentence.
4. The brief facts of the case are that in the forenoon of 16-12-1985 Munir Ahmad P.W. a Tonga driver, and Muhammad Mushtaq appellant, a taxi driver, both belonging to the same village Chak No,353-J.B. (Mehdi Abad), Tehsil Gojra, District Toba Tek Singh, fell out with each other in Dostranwala Bazar of Gojra Town. They were separated by Liaqat P.W.
5. Later on the same day at about 4-30 p.m. In the above-mentioned background when Muhammad Rafiq, the brother of Muhammad Munir P.W. Aforesaid, was returning to his house in the village from the Dera of Ghulam Rasool, where he had gone to milk his cow, Muhammad Mushtaq appellant and Manzoor Ahmad acquitted accused armed with hatchets, Muhammad Asghar appellant armed with a dagger, Muhammad Akhtar alias Akoo co-accused armed with `Chhuri' and other co-accused armed with lathis' intercepted him near their house. Muhammad Mushtaq appellant, raised a `Lalkara' challenging Muhammad Rafiq and simultaneously caught him by the collars and Muhammad Asghar appellant gave a dagger blow, hitting him on the right flank as a result of which he fell down. Attracted by the noise Muhammad Siddiq complainant accompanied by his brothers Bashir Ahmad, Munir Ahmad, Ghafoor and his cousin Muhammad Ashraf P.Ws. Who were all present in his house, hurriedly came out and tried to rescue Muhammad Rafiq and in that process Manzoor Ahipnad appellant gave two hatchet blows to Munir Ahmad P.W.
On left wrist, while Iftikhar Hussain acquitted accused gave him three `Sota' blows. Abdul Ghafoor was given 'Sota' blows by Muhammad Akbar and Rahmat Ali acquitted accused. Rehmat Ali and Rashid Ahmad gave `Sota' blows to Muhammad Ashraf P.W. While Bashir Ahmad P.W. Suffered an injury with a `Sota' at the hands of Muhamamd Ashraf alias Sain and Muhammad Akbar, the acquitted accused. Bashir Ahmad P.W. a brother of the complainant, who was armed with a 'Soft, gave two blows with it to Muhammad Akbar acquitted co-accused in defence of his companions.
Muhammad Rafiq, who was grievously injured during the occurrence, died on the way to Gojra Hospital.
6. The matter was reported to the Gojra police by Muhammad Siddique complainant who in his statement related the above-mentioned facts. After the registration of the case S.I. Abdul Rashid P.W. Went to the hospital and after preparing the inquest report and injury statement, sent the dead body of Muhammad Rafiq to the mortuary for post-mortem examination. He recorded the statement of Munir Ahmad and Ghafoor P.Ws. In the hospital and seized the blood-stained shirt of the former. On the following day he went to the spot, carried out its inspection and collected the blood-stained earth. On the same day he received last-worn clothes of the deceased from Abdul Majeed Constable which were given to him by the doctor after the autopsy. He went on searching for the accused and on 20-12-1985 he arrested Rehmat Ali, Rashid Ahmad and Iftikhar acquitted accused and on the following day he arrested Muhammad Mushtaq, Muhammad Asghar appellants and Muhammad Ashraf acquitted accused. On 25-12-1985, he arrested Muhammad Akbar, acquitted accused. On 25-12-1985 Muhammad Mushtaq led to the recovery of hatchet (P.5) while Muhammad Akbar, Muhammad Ashraf, Rehmat Ali and Rashid Ahmad acquitted accused got recovered `Sotas', respectively. On 28-12-1985 he recorded the statement of Falak Sher P.W.
Under section 161, Cr.P.C. Who alleged that Muhammad Akhtar alias Akoo acquitted accused had in fact given the fatal blow with a Chhuri to Muhammad Rafiq (deceased). On the basis of this statement, the Investigating Officer on 2-1-1986 recorded the supplementary statement of Muhammad Siddique complainant who also implicated Muhammad Akhtar alias Akoo acquitted accused for inflicting `Chhuri' blow to the deceased, as a result of which this added accused was also arrested on 2-1-1986. While in police custody he led to the recovery of blood-stained Chhuri (P.13). In this way he completed the challan and sent up the appellants and the acquitted co- accused for trial.
7. On the commencement of trial the appellants and the acquitted co- accused were charged under sections 302, 307, 148/149, P.P.C. And on their pleading not guilty, the prosecution led evidence against them by producing as many as 15 witnesses.
8. Dr. Muhammad Afzal (P.W.1) had conducted post-mortem examination of the dead body of Muhammad Rafiq and had found two injuries, a stab wound 3 c.m. x 1 c.m. Going deep into right chest cavity, vertical in direction on the outer side of the middle part of the right chest in the posterior axillary line with corresponding cut on the shirt, and an abrasion 1.5 cm in length on the outer side of the left abdomen. On dissection he found shafts of right 5th and 6th ribs cut along with inter-costal muscle. He also noticed right lungs and pleura punctured and right cavity full of blood.
9. In his opinion, death, in this case, occurred due to shock and hemorrhage as a result of injury No,1 which was sufficient in the ordinary course of nature to cause death. Injury No,2, according to him, was simple in nature caused by a fall. He proved the post-mortem report (Exh.P.K.) and the injury (Exh.P.A./1).
10. Ghulam Rasool Patwari (P.W.2) proved the site plans; Abdul Majeed constable (P.W.3) deposed about the safe escort of the dead body from the hospital to the mortuary; A.S.I. Nawab Khan (P.W.4) had kept the parcels pertaining to this case in safe custody in police malkhana before their transmission to the relevant offices through Abdul Majeed Constable (P.W.3); Sher Muhammad (P.W.5) was the identifier of dead body and he deposed accordingly; and Riaz Ahmad alias Boota (P.W.6) had witnessed the collection of the blood-stained earth from the spot.
11. Dr. Abdul Rehman (P.W.7) on 16-12-1985 medically examined Munir Ahmad, Muhammad Ashraf, Muhammad Bashir, Abdul Ghafoor P.Ws. And found certain injuries on their persons, some of which were kept under observation while others were declared simple. On 24-12-1985 the police produced before him Rehmat Ali acquitted accused for medical examination. He found two incised wounds, both simple in nature, caused by a sharp-edged weapon, both located on the right hand.
On 26-12-1985 he medically examined Muhammad Akbar accused on the request of the police and found two healed wounds, both on the left side of the wrist. He proved the medico-legal reports of all these injured persons.
12. Liaqat Ali (P.W. 8) was the witness of motive and recoveries of weapons of offence effected from Muhammad Mushtaq appellant, Muhammad Ashraf, Rashid Ahmad and Rehmat Ali acquitted accused. Shaukat Ali (P.W.9) was a witness of recovery of `Chhuri' from Muhammad Aslam appellant, a `Danda' from Iftikhar Hussain acquitted accused, a hatchet from Manzoor Ahmad appellant. He was also a witness of recovery of `Chhuri' at the instance of Muhammad Akhtar alias Akoo acquitted accused but during the course of his deposition he did not support this fact and he was not declared hostile. Muhammad Siddiq (P.W.10), Muhammad Ashraf (P.W.11), Iftikhar Hussain (P.W.12), Munir Ahmad (P.W.13) and Falak Sher (P.W.14) gave eye-witness account. They, with the exception of Falak Sher P.W., by and large supported the prosecution version of the occurrence as narrated above. Their testimony shall he subjected to detail appraisal, in due course, where necessary.
13. The last witness was S.I. Abdul Rashid (P.W.15). The role played by him as the Investigating Officer has already been outlined.
14. The appellants and their acquitted accused in their respective statements recorded under section 342, Cr.P.C. Denied all the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implications professed innocence. The appellants denied their participation in the crime. Muhammad Akbar and Rehmat Ali acquitted accused had, however, admitted their participation but claimed that they had gone to separate the parties. They supported the allegations of the appellants that they were not present at the time of incident. The learned trial Judge, vide his judgment now under challenge acquitted Muhammad Akbar, Rehmat Ali and Muhammad Ashraf accused for the reason that the witnesses injured by them were not produced before the trial Court, while he acquitted Iftikhar Hussain, Muhammad Akhtar alias Akoo on benefit of doubt. He convicted and sentenced the appellants as also Rashid Ahmad who has not appealed.
14-A. It is argued on behalf of the appellants that the fatal blow on the person of the deceased was in fact inflicted by Muhammad Akhtar alias Akoo acquitted accused but he was purposely omitted by the complainant while lodging the report to the police because he had effected compromise with the good offices of Farrukh Nawaz Goreya Lambardar with the complainant party but during the course of investigation when most of the respectable of the village agitated against the false involvement of Muhammad Asghar the Investigating Officer had to write supplementary statement of Muhammad Siddiq complainant who involved him (Muhammad Akhtar alias Akoo) for the infliction of fatal blow to the deceased but later during the trial he disowned his statement like Shaukat Ali (P.W.9) who did not support the recovery of `Chhuri' at the instance of Muhammad Akhtar alias Akoo acquitted accused. According to the learned counsel what had actually happened was that Muhammad Mushtaq and Muhammad Asghar appellants, besides one Khalid and Tufail, were travelling back from Gijra Town to their village in the Tonga of Lal (given-up P.W), uncle of Muhammad Siddiq complainant, and when they were about to pass through the street flanked by the house of the complainant party, they were suddenly embushed by their opponents who were lying in wait for them on the complaint of Muhammad Munir P.W. Who had reached the village *earlier to Muhammad Mushtaq, and others ran away after jumping out of the Tonga and raising alarm as a result of which a number of relations of both factions collected and engaged themselves in a free fight as a result of which both the sides suffered a number of injuries but the one received by Muhammad Rafiq (deceased) at the hands of Muhammad Akhtar alias Akoo proved fatal and since his assailant happened to save his skin by effecting compromise, as already explained, his name was omitted from the F.I.R. In his view, it was the complainant party which was aggressor but since they happened to be richer and influential having a chequered history o committing serious crimes, they, with the collusion of police, happened to turn the tables on the accused party who in every respect are less fortunate. Finally, it is urged that the prosecution witnesses, who gave eye-witness account and deposed about recoveries, were closely related to one another and also to the deceased and the complainant and none of them, excepting Falak Sher P.W., was an independent witness.
15. With regard to Manzoor Ahmad appellant, who is represented by a separate counsel, it is contended that he was attributed simple injury with sharp-edged weapon on the back of Munir P.W. And the hatchet allegedly used and ecovered from his possession was not found to be stained with human blood nor it was recovered from his possession. According to the learned counsel, by this time he has undergone six months' imprisonment and in fact he has been falsely implicated because he has no relationship or friendship whatsoever with Muhammad Mushtaq appellant against whom the motive regarding the quarrel between him and Munir Ahmad was alleged.
16. On the contrary, it is argued on behalf of the State that the prosecution case is fully supported by the injured witnesses, the evidence of motive and recoveries besides the medical evidence and the appellants were rightly convicted and sentenced. It is contended that the trial Court seriously erred in omitting to award the sentence of fine to Muhammad Asghar, who was awarded mprisonment for life, and the heirs of the deceased should also have been awarded compensation under section 544-A, Cr.P.0 but the trial Court erred in that respect also.
17. There is a substance in the contention of the learned State counsel that he learned trial Judge seriously erred in omitting to award sentence of fine to Muhammad Asghar appellant who was awarded imprisonment for life for omitting murder of Muhammad Rafiq and was convicted under section 302, .P.C. Similarly, it was incumbent upon him to have awarded adequate compensation to the heirs of the deceased under section 544, Cr.P.C. And to ward sentence of imprisonment provided by law in case of its non-payment and that respect too he made a serious omission.
However, the question of satisfaction of these requirements of law would arise only if the conviction and stance of the appellant are maintained.
18. It is in the prosecution evidence that during the investigation the estimating Officer had to write supplementary statement of Muhammad Siddiq Applicant implicating Muhammad Akhtar alias Akoo for causing fatal injury to Muhammad Rafiq (deceased) and after effecting the recovery of blood-stained hhuri' at his instance, arraigned him as an accused along with others whose mes were already mentioned in the F.I.R. During the trial Muhammad Siddiq mplainant disowned his supplementary statement and Shaukat Ali (P.W.9), o had witnessed the recovery of blood-stained `Chhurri' at the instance of uhammad Akhtar alias Akoo accused, also did not support the prosecution se and was declared hostile. The contention of the learned counsel for the plants is that Muhammad Akhtar alias Akoo acquitted accused was the 1 killer of Muhammad Mushtaq but he hurriedly effected compromise with the Applicant party with the good offices of certain influential persons. In the age and the complainant while recording the F.I.R. Purposely omitted his ame but later during the investigation it was on the protest of the respectables of the village that he was named as an accused in the supplementary statement of the complainant. There seems to be a good deal of substance in this argument and it appears that for Muhammad Akhtar alias Akoo acquitted accused, Muhammad Asghar appellant was substituted and fatal blow was assigned to him. No weapon of offence was recovered from him during the investigation. All these facts go a long way to show that if his role as the main culprit in this case was not altogether false, it was definitely doubtful. Therefore, his appeal is accepted, his conviction and sentence are set aside and he is acquitted. He shall be immediately released if not required in any other case.
19. As regards Manzoor Ahmad and Mushtaq Ahmad appellants they were convicted under section 324, P.P.C. And were sentenced to two years' R.I. Each, for having caused simple injuries with sharp- edged weapon to Munir Ahmad P.W. Their learned counsel submits that by this time they have undergone about six months' R.I. Intermittently and he would be satisfied if their sentence is reduced to the one already undergone by them In the circumstances of the case they are entitled to the concession in the matter of sentence. Therefore, where thcir conviction under section 324, P.P.C. Is maintained, the sentence awarded to each of them is reduced to the one already undergone by him. They are already on bail. Only to this extent their appeal is accepted.