' IJAZ NISAR, J.---Sohni (67), Ismail (70), Ghulam Muhammad alias Ghaman(55) and Muhammad Shafi(52) sons of Nawab, Muhammad Hussain (33), Muhammad Ramzan (28), Shaukat Ali (27) and Muhammad Rashid (19) sons of Sohni, Arif son of Ismail (30), Salamat son of Muhammad Shan (52) and Muhammad Ashraf alias Arshad son of Channan Din (22) were tried for the murders of Jalal Din and Muhammad Sardar and for making a murderous assault on Muhammad Akram PW.
6. By his judgment dated 14-12-1987 the learned Additional Sessions Judge, Lahore convicted Sohni, Ismail, Muhammad Hussain, Shaukat Ali, Ghulam Muhammad alias Ghamman, Arif, Muhammad Ramzan and Muhammad Shafi under section 148, P.P.C. And sentenced them to two years' R.I.
Sohni, Ismail, Muhammad Hussain, Ghulam Muhammad, Arif and Muhammad Ramzan were also convicted under section 302/149, P.P.C. And sentenced to death. Shaukat Ali was convicted under section 302/149, P.P.C. And sentenced to imprisonment for life and a fine of Rs,20,000. Muhammad Shafi son of Nawab was convicted under section 324, P.P.C. And sentenced to undergo two years'
R.I. With benefit of section 382-B, Cr.P.C. Rashid, Salamat and Muhammad Ashraf alias Arshad were given the benefit of doubt and acquitted.
2. The convicted accused have preferred an appeal against their conviction and sentences while the learned trial Court has made a reference under section 374, Cr.P.C. For confirmation of the sentences of death of Sohni, Ismail, Ghulam Muhammad, Muhammad Hussain, Muhammad Ramzan and Muhammad Arif. Both the matters shall be disposed of together.
3. Muhammad Hussain, Shaukat Ali, Muhammad Ramzan and Rashid are sons of Sohni, Muhammad Shalt, Ghulam Muhammad and Muhammad Ismail are brothers of Sohni, Salamat is son of Muhammad Shan and Arif is son of Muhammad Ismail. Muhammad Ashraf alias Arshad is a cousin of Muhammad Arif.
4. The prosecution case is that on 26-5-1985 at evening time Muhammad Akram P.W. And Manzoor Hussain P.W. (not produced) were watering their mare at the village well. Muhammad Ramzan, Shaukat Ali, Muhammad Hussain and Rashid accused came there and started watering their buffaloes. Muhammad Akram and Manzoor Hussain objected to it whereupon a physical altercation ensued between them. The accused left for their houses threatening Muhammad Akram and Manzoor Hussain P.Ws. With dire consequences. After a short while Shaukat, Sohni, Muhammad Hussain, Rashid. Ismail, Arif, Ghulam Muhammad and Muhammad Shalt armed with Barchhis, Salamat armed with a revolver and Arshad armed with a gun came to the village chowk where Muhammad Akram PW. 6, Muhammad Ameen PW. 7 and Sandal PW. 5 were present with Sardar and Jalal Din deceased. Salamat and Arshad accused raised lalkaras and fired from their respective weapons. The other accused launched an attack on the complainant party. Sohni inflicted a Barchhi blow on the left flank of Jalal Din deceased, Muhammad Ramzan gave a barchhi blow to Sardar deceased on his left wrist, Shaukat Ali inflicted barchhi blow on Jalal Din deceased on back of his right shoulder. Muhammad Ismail inflicted Barchhi blow on the right side of the abdomen of Jalal Din. Muhammad Hussain inflicted a barchhi blow on the right shoulder of Jalal Din deceased. Ghulam Muhammad gave a barchhi blow to Sardar deceased on his abdomen. Arif inflicted barchhi blow on the left hip of Sardar deceased. Muhammad Shafi gave a barchhi blow on the back of right thigh of Muhammad Akram P.W. Sohni appellant also received injuries during the occurrence. Sardar died on the spot while Jalal Din died on way to the Hospital. Muhammad Akram P.W. Proceeded to Police Post Hair, P.S. Barki and made statement Exh. PC on the same night at 10 p.m. On the basis of which formal FIR Exh. PC/1 was later recorded.
' Qamar-uz-Zaman S.I. Prepared the inquest report of Jalal Din deceased Exh. PV and his injury statement Exh. PW. He also prepared the injury statement Exh. PX of Muhammad Akram P.W and sent him for medical examination. He then left for the spot and prepared the injury statement Exh.
PZ and inquest Exh. PY of Sardar deceased.
' Liaquat All Mirza, Inspector PW. 17 also investigated the case. He arrested Muhammad Arif, Shaukat, Rashid, Muhammad Ramzan and Muhammad Shall on 1-6-1985 and Muhammad Hussain, Ismail, Ghulam Muhammad and Muhammad Ashraf on 3-6-1985. On 5-6-1985 Muhammad Ashraf led to the recovery of .12 bore gun Exh. P. 7 alongwith licence vide memo Exh. PH.
On the same day Ghulam Muhammad appellant led to the recovery of Barchhi P. 8 from his house through memo Exh. PJ. The memos were attested by Muhammad Younus PW. 9 and Taj Din PW.
10. On 7-6-1985 Arif appellant led to the recovery of Barchhi P. 10 through memo Exh. PL, Muhammad Hussain appellant got recovered Barchhi P. 9 through memo Exh. PK attested by Muhammad Younus PW. 9 and Muhammad Shafi (not produced). On 8-6-1985 Sohni led to the recovery of blood-stained barchhi P. 13 from his house vide memo Exh. PN attested by All Muhammad PW. 11 and Jalal Din (not produced). Muhammad Ramzan led to the recovery of Barchhi P. 14 vide memo Exh. PO attested by Ali Muhammad PW. 11 and Jalal Din (not produced).
Muhammad Shafi got recovered blood-stained Barchhi P. 12 vide memo Exh. PK on 8-6-1985 attested by the same witnesses namely Ali Muhammad PW. 11, Jalal Din (not produced) and Liaquat Ali Mirza, Inspector PW.
17. On 10-6-1985 Ismail got recovered Dang P. 11 and blade of barchhi from his house vide memo Exh. PM attested by Taj Din PW. 10, Hidavat All (not produced) and Liaquat Ali Mirza, Inspector P.W.
11. Vide Serologist's report Exh. PDD the blades of the barchhis of Muhammad Hussain, Sohni, Muhammad Arif, Muhammad Shall and Muhammad Ramzan were stainced with human blood.
' The post-mortem reports of the two deceased are as follows:
(1) Injuries of Jalal Din deceased.--(1) Incised wound 6.5 x 2 c.m vertical in direction in front of right upper arm 8 cm below right shoulder. Injury was muscle;deep and had cut the axillary vessels.
(2) Stab wound cavity deep 3.5 x 1.5 cm with clean cut margins vartically oblique in direction in front of abdomen on right side 17 cm below right nipple and 14 cm outer and above to the umblicus.
' Stab wound cavity deep 5 x 2.5 cm with loop of small intestine coming out.
' Stab wound cavity deep with clean cut margins 2.5 x 1 cm vertically oblique in direction on hack of right side of chest 1 cm below lower angle of scapula and 10 cm outer to midline.
' The injuries were ante-mortem and caused by sharp-edged weapons. All of them were individually and collectively sufficient to cause death in the ordinary course of nature.
(2) Injuries of Sardar "deceased. --(1) Stab wound 8.5 x 3.5 x cavity deep in the epigastric region obliquely placed 16 cm below manutrium sterni 17.5 cm above umblicus. Right angle of the wound was 7.3 cm below right nipple. Left angle was 15 cm below and medial to left nipple. Both angles of the wound were acute.
' Incised wound 2 x 0.5 cm x muscle deep left wrist inner border. Abrasion 5.5 x 0.5 cm left forearm back and middle.
(4) Abrasion 3.5 x 1 cm left forearm back 3.5 cm below elbow.
(5) Abrasion 1.8 x 1 cm left elbow.
(6) Stab wound 1.5 x 0.75 cm x cavity deep left lumber area 10 cm from posterior midline 14.5 cm above and hack to left interior superior iliac spine.
' Injuries Nos. 1 and 6 were fatal. Injuries Nos. 1, 2 and 6 were caused by sharp-edged weapon and the rest by blunt weapons.
' Dr. Muhammad Nasim Bhatti, PW. 15 examined Sohni appellant on 9-6-1985 and found the following injuries on his person:
(1) A lacerated wound 4 cm x 1 cm x 1/2 cm with ragged margins on the inner side of the right thigh granulation tissue with serosangious discharge. No scar tissue formation which indicates sepsis of the wound.
(2) A lacerated wound on outer side of right thigh measuring 3 cm x 1/2 cm. No discharge of any kind. No scar tissue formation which is indicative of sepsis in the wound.
' The injuries were simple in nature and caused by blunt weapon. Duration of injuries was 3 to 4 weeks.
' Dr. Qamar-ud-Din Qadri PW. 18 examined Muhammad Akram P.W. And found the following injuries on his person:
(1) An incised wound 1 cm x .4 cm into muscle deep on inner upper right thigh with corresponding cut present on shirt and Dhoti.
' The injury was caused by a sharp-edged weapon and was simple in nature.
5. To prove its case the prosecution examined 19 witnesses. Sandal PW. 5, Muhammad Akram PW. 6 and Muhammad Ameen PW. 7 furnished the ocular account. Muhammad Younis PW. 9, Taj Din PW.
10 and Ali Muhammad PW. 11 proved the recoveries of the weapons of offence from the accused.
Liaquat Ali Mirza, Inspector PW. 17 and Qamar-ud-Din S.I. PW. 19 investigated the case.
6. The appellants denied the prosecution allegations. According to them the deceased were smugglers and used to smuggle goods to India. They were killed by Sikh smugglers due to smuggling dispute. The complainant party thought that they had informed the Sikhs about them and for the said reason they were falsely involved. They examined Dost Muhammad, Moharrir D.W. 1 in their defence who proved the involvement of Sandal P.W. And Ghulam Rasul son of Jalal Din etc. In some criminal cases including cases under the Customs Act.
7. Relying on the ocular testimony supported by the medical evidence and recoveries, the trial Court convicted and sentenced the appellants as described above. The motive was however, not believed. The learned trial Court observed that the appellants had no motive against Sardar and Jalal Din deceased because they were not present at the time of altercation preceding the occurrence, at the well.
8. It is contended that the eye-witnesses examined by the prosecution are not creditworthy being partisans. Muhammad Akram PW. 6 is closely related to the two deceased, Muhammad Ameen PW.
7 is their party-man while Sandal, PW. 5 is a history sheeter. There is no independent corroboration of their statements because the recovery witnesses namely Muhammad Younus PW. 9 and Taj Din PW. 10 are also closely related to the deceased. Muhammad Younas PW. 9 is brother of Muhammad Akram PW. 6 while Taj Din PW. 10 is sister's son of Jalal Din. It is next contended that the prosecution had suppressed the injuries of Sohni appellant and there is no mention of the same in the FIR. It is further contended that the prosecution has thrown the net too wide to implicate the entire family of Sohni appellant in the occurrence.
9. The prosecution has involved 11 accused in the present case. Seven of them are alleged to have caused Barchhi blows to Jalal Din and Sardar deceased. One injury each is attributed to Sohni, Ismail, Muhammad Hussain, Shaukat, Ghulam Muhammad alias Ghamman, Arif and Muhammad Ramzan appellants.
' There is no allegation against them of having repeated the blows. Three sharp-edged weapon injuries were found on the body of Sardar deceased while four sharp-edged weapon injuries were noticed on Jalal Din deceased. One simple sharp-edged weapon injury was found on the person of Muhammad Akram. The number of injuries found on the deceased and Muhammad .Akram PW is not commensurate with the number of the accused. If all the accused had taken part in the occurrence they would not have confined themselves to causing a solitary blow to their enemies particularly when there was nothing to prevent them from repeating the blows. Two of them were said to be armed with firearms which they had used during the occurrence but surprisingly nobody received any firearm injuries. In the FIR there is no mention at all of Sohni appellant receiving any injuries during the occurrence but at the trial the prosecution witnesses stated that he had suffered Barchhi blow at the hands of his co-accused. They stand falsified by the medical evidence because in the medical examination no sharp-edged weapon injury was found on his person and instead two lacerated wounds caused by blunt weapons were noticed by the doctor. He himself has given an altogether different version of his injury. According to him two days after the occurrence the complainant party caught hold of him and gave him injuries and handed him over to the police and that the police kept him in their illegal custody and formally arrested him on 1-6- 1985 when his condition worsened and produced him before the doctor on 9-6-1986 and got him medically examined. From the above circumstances it appears that both the parties are not coming up with truth and have suppressed material facts leading to the occurrence. In such a situation we are left with no alternative but to draw a conclusion of our own about the origin of the occurrence and the events connected therewith.
10. Admittedly there was no previous background of enmity between the parties and the occurrence was the result of a quarrel having taken place at the village well on watering the cattle between Muhammad Akram and Manzoor P.Ws. On one side and Muhammad Hussain, Shaukat Ali, Muhammad Ramzan and Rashid on the other. In the absence of any other reason of conflict between the parties we see no ground to disbelieve the prosecution version on this account. It is a matter of common knowledge that the villagers indulge in physical altercation/scuffle over the turn of water or such other matters of trivial nature. According to the prosecution Muhammad Akram and Manzoor P.Ws. Of the complainant party were watering their mares when in the meantime, Muhammad Hussain, Shaukat, Muhammad Ramzan and Rashid sons of Sohni appellants came and started watering their buffaloes. On the creation of some obstruction the complainant party objected to it which led to a physical altercation between them and when the complainant party was returning to their house the accused attacked them. The eye-witnesses examined by the prosecution have given cogent reasons for their presence at the spot and their evidence cannot be discarded merely for their relationship with the deceased.
' The circumstances of the case suggest that the parties fought with each other again while returning from the well. Sohni being father of Muhammad Hussain, Shaukat and Muhammad Rizwan and Muhammad Shafi being his nephews were likely to have taken part in the fight. Sohni appellant also received injuries at the hands of the complainant party but so far as Muhammad Ismail, Ghulam Muhammad alias Ghamman and Arif are concerned we entertain doubt about their participation in the fight for want of any independent corroboration.
'The facts and circumstances of the case lead to the conclusion that there was no premeditation and a sudden quarrel resulted in the occurrence in which both the deceased persons and Muhammad Akram P.W on one side and Sohni appellant from the accused side suffered injuries.
One injury each (fatal in nature) is attributed to Muhammad Hussain, Sohni and Shaukat while simple injuries are attributed to Muhammad Ramzan and Muhammad Shafi appellants. In this view of the matter they cannot be held to have taken any undue advantage -of the situation or acted in a cruel or unusual manner. We are, therefore, of the view that Exception 4 to Section 300, P.P.C. Is attracted to the facts of the case. The accused taking part in the occurrence are liable for their individual acts. Fatal injuries are attributed to Muhammad Hussain son of Sohni, Sohni and Shaukat appellants while simple injuries with a sharp-edged weapon are attributed to Muhammad Ramzan and Muhammad Shafi appellants. . We, therefore, convict Sohni son of Nawab and his sons Muhammad Hussain and Shaukat Ali under section 304, Part I, P.P.C. And sentence them to imprisonment for life plus a fine of Rs,20,000 each or in default to undergo two years' R.I. Each. The fine, if recovered, shall be paid to the heirs of the two deceased in equal shares as compensation.
The conviction and sentence of Muhammad Shafi son of Nawab under section 324, P.P.C. Is maintained. The conviction of Muhammad Ramzan son of Sohni under section 302/149, P.P.C. Is set aside and he is acquitted of the said charge and instead convicted under section 324, P.P.C. And sentenced to two years R.I. Plus a fine of Rs,2,000 or in default to undergo three months' R.I. The fine, if realised, shall be paid to the heirs of Sardar deceased. Muhammad Shafi and Ramzan shall be given the benefit of section 382-B, Cr.P.C.
' The conviction and sentence of Sohni son of Nawab, Ramzan, Muhammad Hussain and Shaukat sons of Sohni and Arif son of Ismail under section 148 PPC is set aside and they are acquitted of the charge. Muhammad Ismail, Ghulam Muhammad alias Ghamman sons of Nawab and Muhammad Arif son of Ismail arc given the benefit of doubt and acquitted of the charges. Their conviction under sections 148, 302/149, P.P.C. Is set aside. They shall be set at liberty, if not required to be detained in any other case.
' The death sentence of Sohni, Muhammad Ismail, Ghulam Muhammad, Muhammad Hussain, Muhammad Ramzan and Muhammad Arif is NOT confirmed.
' The appeal is disposed of in the above terms.