1. ' GHULAM MUJADDID, J.--This appeal by Muhammad Asghar son of Muhammad Sharif, resident of Jhandanwala Tehsil Kharian District Gujrat is by leave of this Court. It is only against Mohammad Latif, Muhammad Ashraf and Muhammad Alam. Petition for leave to appeal qua other respondents was dismissed.
2. ' The judgment impugned in this appeal is dated 19-10-1986 of the Lahore High Court whereby the respondents were acquitted of all the charges.
3. ' It was on the statement of the appellant, that initially a case under section 149/307/147, P.P.C. Was registered at Police, Station, Kharian Cantt. Later on one of the injured died, as a result of which murder charge was added.
4. ' All the accused were tried by the Additional Sessions Judge, Gujrat. They were found guilty and sentenced them as under:-- ' Muhammad Ashraf, Muhammad Latif, Muhammad Azam and Muhammad Zaman were convicted under section 302/34, P.P.C. Muhammad Ashraf and Muhammad Latif were sentenced to death with fine of Rs,2,000 each or in default six months R.I. Each. Mohammad Azam and Muhammad Zaman were sentenced to imprisonment for life with fine of Rs,2,000 each or in default six months R.I. Each. Muhammad Alam and Muhammad Siddique were acquitted of the offence of murder.
5. ' All the accused-respondents were convicted under section 148, P.P.C. And sentenced to six months R.I. Each.
6. ' All of them were also convicted under section 307/149, P.P.C. And sentenced to two years R.I. Each with fine of Rs,1,000 each or in default six months R.I. Each. The sentences were ordered to run concurrently.
7. ' The convicts appealed to the Lahore High Court. Reference for confirmation of death sentence of Muhammad Ashraf and Muhammad Latif was also made. Appellant Muhammad Asghar filed revision against the acquittal of Muhammad Alam and Muhammad Siddique under section 302, P.P.C. And for enhancement of sentence of Muhammad Azam and Muhammad Zaman. All these matters were decided by the Lahore High Court by means of the impugned judgment.
8. ' Muhammad Ashraf, Muhammad Latif, Muhammad Azam and Muhammad Zaman accused are real brothers inter se. Muhammad Alam and Muhammad Siddique are also real brotheRs, They are maternal cousins of Muhammad Ashraf and otheRs, ' Motive for the incident was that two and a half months prior to the occurrence the respondents- accused and Bashir Ahmad who was killed in this incident fought. The fight resulted in cross cases against the Parties.
9. ' The background of the fight was that Muhammad Asghar appellant was married to the daughter of Wali Dad, maternal uncle of Muhammad Ashraf and otheRs, The relations between Muhammad Asghar and his wife became strained. They could not get on well as a result of which his wife obtained an ex parte decree of divorce.
10. ' On the day of occurrence it was about 3-45 p.m. Bashir Ahmad deceased and Muhammad Asghar appellant complainant were going for toilet. They passed in front of the house of Wali Dad.
11. Both were attacked by the accused-respondents with Lathis. Muhammad Latif respondent instigated the others and shouted not to spare Bashir Ahmad. Muhammad Latif inflicted a Lathi blow on his head. Bashir Ahmad fell down. He was then hit by Muhammad Ashraf with Sota on the head. Muhammad Azam, Muhammad Zaman also injured Bashir with Lathis.
12. ' Muhammad Alam and Muhammad Siddique gave stick blows to Muhammad Asghar appellant.
13. Muhammad Boota and Mst. Sughra PWs came to the spot on the hue and cry. They intervened.
14. Both were injured by Muhammad Azam and Muhammad Zaman who gave Lathis blows to them.
15. ' Appellant Mohammad Asghar and his companion Boota caused injuries to Muhammad Ashraf, Muhammad Latif and Muhammad Alam respondents. This was done in self defence. When it was all over the accused disappeared. The injured were removed to Civil Hospital, Kharian.
16. ' Bashir Ahmad was shifted to Mayo Hospital, Lahore but unfortunately on 29-12-1979 he breathed his last at 12-20 p.m.
17. ' The prosecution in order to prove its case relied on the testimony of Muhammad Boota nephew of the deceased; Mst. Sughra sister of Asghar and Muhammad Asghar appellant friend of the deceased.
18. ' Rest of the evidence consists of recoveries of Sotas. There is no need to discuss the recovery evidence because it was neither relied by the trial Court nor by the High Court as it was not incriminating.
19. ' This leaves us with the medical evidence which consists of the medico-legal reports of the injured P.Ws., post-mortem report of the deceased and medico-legal reports of the accused-respondents.
20. ' The respondent denied the allegations. Mohammad Alam gave his own version of the incident in detail. It shall be referred later on.
21. ' Leave was granted to re-examine the testimony of Muhammad Asghar, Muhammad Boota and Mst. Sughra.
22. ' First of all we would like to deal with the medical evidence.
23. ' On 25-12-1979 at 4-20 p.m., Dr. Zameer Akhtar, examined Bashir Ahmad while he was alive. The doctor found six contused woun on the top of head; posterior aspect of head; later side of head and on the left eye brow. Bashir Ahmad was unconscious and restless. Injury on the top of head was declared grievous caused by blunt weapon.
24. ' The same doctor on 29-12-1979 at 2-10 p.m. Performed autopsy on the deadbody of Bashir Ahmad. In addition to the same injuries as mentioned in the medico-legal report, he found three abrasions.
25. ' In the opinion of the doctor death occurred due to haemorrhage and shock having been caused by the injuries on the head.
26. ' Muhammad Asghar complainant-appellant was examined by the same doctor. He had six injuries. Muhammad Boota had four injuries. All the injuries of both of them were declared simple caused by blunt weapon.
27. ' On 26-12-1979 Dr. MRs, Fiaz Parvez examined Mst. Sughra. She had three injuries. Bruise on left arm 3 x 3" near wrist was found grievous being fracture of lower end of left radius. The rest were simple.
28. ' As is evident from the medico-legal reports total number of injuries on the complainant side was
17. The weapon used by the respondents was Lathis. Out of the total injuries, two injuries one on the person of the deceased and the other on Sughra Bibi were found to be grievous. The remaining were simple.
29. ' From the side of respondents, Muhammad Latif, Muhammad Ashraf and Muhammad Alam were injured. They were examined by Dr. Zameer Akhtar, Medical Officer on 26-12-1979 at about 11 a.m.
30. ' Muhammad Ashraf had three injuries; Muhammad Latif four injuries and Muhammad Alam one.
31. All the injuries were declared simple with blunt weapon.
32. ' Now we proceed to examine the prosecution version in juxtaposition with the defence story. Here it is necessary to refer to the statement of Muhammad Alam respondent. We don't think it is necessary to reproduce the same verbatim as it has been mentioned in detail in the judgment impugned before us.
33. ' The sum and substance of his statement is that on the day of occurrence when both the parties came face to face with each other the initiative was taken by the complainant side. They were the aggressoRs, The respondents had no option but to use force to save themselves.
34. ' We have re-examined the evidence of the injured prosecution witnesses. The injuries only establish their presence at the spot. Truth is to be found after comparing their testimony with the statement of the respondents.
35. ' The respondents admitted the occurrence. This proves their bona fides. After comparing both the versions, we are of the view that the story of the defence is more probable and likely than that of the prosecution. Hence the High Court rightly observed that the plea advanced by the respondents having been first attacked by the complainant party and their having acted in self defence appears to be reasonably possible.
36. ' The High Court noticed that there was no remote or immediate motive against Bashir Ahmad deceased. It was further observed by the High Court that the number of injuries found on the person of the deceased did not commensurate with the number of the accused. It was further noted that there were lots of improvements made by the prosecution witnesses and finally that "the testimony of the eye-witnesses could not be accepted without any corroboration which is not forthcoming".
37. ' The impugned judgment as such does not call for any interference. The appeal is accordingly dismissed.
38. ' The respondents are discharged of their bail bounds.
39. 1990 SCMR 123 [Shariat Appellate Bench] {{URDU TEXT}}
(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)- -- Ss. 10(2) & 16-Penal Code (XLV of 1860), S. 494-Constitution of Pakistan (1973), Art. 203-F- {{URDU TEXT}}
(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)- -- Ss. 10(2) & 16-Penal Code (XLV of 1860), S. 494--Constitution of Pakistan (1973), Art. 203-F- {{URDU TEXT}} {{URDU TEXT}} {{URDU TEXT}} 1990 SCMR 126 [Shariat Appellate Bench] {{URDU TEXT}} Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)S. 10(2)-Constitution of Pakistan (1973), Art. 203-F- {{URDU TEXT}}
(a) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)- -- S. 20-Penal Code (XLV of 1860), Ss. 392 & 411- {{URDU TEXT}} [pp. 132, 134]A & C
(b) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)- -- Ss. 17 & 20- {{URDU TEXT}}
(c) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)- -- Ss. 17 & 20- Penal Code (XLV of 1860), Ss. 392 & 411- {{URDU TEXT}}
(d) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)- -- Ss. 17 & 20-Penal Code (XLV of 1860), Ss. 392 & 411-Constitution of Pakistan (1973), Art. 203-F- {{URDU TEXT}}