The present appeal is directed against the judgment, dated 7-8-1986, passed by S. Shaukat Javaid, Magistrate, Section 30, Gujranwala, whereby the appellants were convicted under section 307/34, P.P.C. And sentenced to five years' R.I. And a fine of Rs.5,000 each or in default thereof to further R.I.
Of six months' each. The fine if realized, shall be equally divided between the two injured P.Ws. As compensation.
2. The co-accused Mst. Batool Bibi and Abid Hussain were acquitted of the charge by the same judgment.
3. Briefly stated, the prosecution story is that on 29-6-1985 at about 3 p.m. The appellants alongwith their acquitted co-accused viz. Abid Hussain and Mst. Batool Bibi came at the shop of Muhammad Yasin complainant situated at Gulzar Colony in Gujranwala City. The first two appellants, armed with Chhuris and the third appellant and two acquitted co-accused were empty-handed. Mst. Batool Bibi, since acquitted, raised a Lalkara that today they will teach a lesson to Azhar. Javed (P.W.) for getting their house vacated and for spoiling their reputation. Zakir Hussain caught hold of Azhar Javed upon which Shabir Hussain gave two Chhuri blows hitting on his left side of chest and on abdomen. Zakir Hussain and Abid Hussain gave fist blows to the complainant Muhammad Yasin upon which complainant inflicted an iron-rod blow to Muhammad Shabbir appellant on his head in order to save him. Barkat Ali injured P.W., sustained a Chhuri blow on his abdomen at the hands of Balam Naz appellant. The appellant---s alongwith their acquitted co-accused fled away from the spot raising Lalkara. The occurrence was witnessed by Muhammad Riaz son of Muhammad Aslam. After the completion of investigation the appellants were challaned.
F.I.R. No. 275, dated 29-6-1985 under sections 307, 326, 324 and148/149. P.P.C. Was registered at Police Station Satellite Town, Gujranwala.
4. On 10-9-1985 formal charge under section 307/148/149, P.P.C. Was framed against all the five accused persons. All of them pleaded not guilty to the charge. In support of its case prosecution produced and examined nine witnesses.
P.W.1 Muhammad Yasin son of Allah Rakha is complainant of this case. He stated the story mentioned in the preceding para. This case was registered on his report Exh. P.B.
P.W.2 Azhar Javed son of Allah Rakha stated that in the month of June1985, on the day at about 3- 00 he alongwith his uncle Barkat, brother Muhammad Yasin, Muhammad Riaz and Muhammad Aslam was working in his shop situated in Main Bazar, Gulzar Colony, when all the accused facing trial reached there, Mst. Batool raised Lalkara to give taste of disreputing and getting the house vacated. Zakar Hussain took him into his Japha Shabbir gave Chhuri blow on his chest and gave another blow on his abdomen. He fell down and became unconscious. On the next day he was in senses while present in hospital.
P.W.3 Muhammad Riaz son of Muhammad Bashir stated that on that ' day he alongwith others was present on the shop when Muhammad Shabbir and Balam Naz armed with Chhuris and others empty-handed reached the shop. Batool Begum raised Lalkara to give taste to Azhar Javed etc. For insulting and getting the house vacated. Zakir Hussain took Azhar Javed into his Japha on which Shabbir gave two blows with Chhuri resulting in injuries on his chest and abdomen. Balam Naz gave a Chhuri blow resulting in injury on the abdomen of Barkat Ali. Afterwards Zakar Hussain and Abid gave fist blows to Yasin, who picked up an iron rod and gave blow on the head of Shabbir. The witness alongwith others intervened and saved the injured. Later on police recorded his statement and secured blood-stained clothes of Azhar Javed and Barkat Ali from Muhammad Yasin in his presence. He signed the recovery memo. Exh. PA.
P.W.4 Barkat Ali son of Nawab Din stated that on 29-6-1985 at 3-30 p.m. All the five accused reached the shop, Batool Begum raised Lalkara to give taste to Azhar Javed for getting the house vacated and for defaming them. Zakar took Azhar Javed into his Japha, on which Shabbir gave Chhuri blow on his chest and repeated attack giving another Chhuri blow on his abdomen. He rushed to save him, on which Balam Naz inflicted him (witness) a Chhuri injury. Yasin picked up a Sarya and gave a blow on head of Shabbir. He (witness) became unconscious.
P.W.S Abdul Ghani son of Rehmat Khan stated that a year back he alongwith Muhammad Ali was with police when Balam accused was under arrest and he got recovered Chhuri P.4 from his room which was taken into police possession vide memo. Exh. P.C. He had signed the same. Afterwards on the same day Shabbir accused led to the recovery of Chhuri P.5, which was taken into police possession vide memo. Exh. P.D. He and Muhammad Ali had thumb---marked the memos.
P.W.6 Javed Iqbal son of Charagh Din is a witness to the securing of blood-stained earth from the place of occurrence i.e. From the door of shop. He and one Shaukat Ali had signed recovery memo.
Exh.P.E.
5. Muhammad Ali and Shaukat Ali recovery witnesses were given up being unnecessary by prosecution.
P.W.7 Muhammad Feroz A.S.I. Stated that on 29-6-1985 he was posted as A.S.I. At Police Station Satellite Town when he recorded the statement Exh. P.B. On the dictation of Muhammad Yasin complainant, registered case, inspected place of occurrence, recorded statements of witnesses, secured blood--stained earth vide memo. Exh.P.E., took clothes of injured into possession vide memo. Exh.P.A., prepared site plan Exh. P.F., arrested the accused, recovered Chhuri P.4 at the instance of Balam Naz accused and took into possession vide memo. Exh. P.C., secured Chhuri P.5 recovered at the pointation of Shabbir vide memo. Exh. P.D., prepared site plans of recoveries places Exh.P.C./1 and Exh.P.D./1 respectively and challaned the accused persons.
P.W.8 Dr. Hafiz Muhammad Akram, Medical Officer. Of D.H.Q. Hospital, Gujranwala stated on 29-6- 1985 at 3-30 p.m. He medically examined Azhar son of Allah Rakha and found the following injuries on his person:-- (1)Incised wound 2-1/2 c.m. x 1 cm. Going deep in front of left chest at mid clavicular line just below the left clavicle.
(2)Incised wound 3 c.m. x 1 c.m. Going deep in the left side of abdomen superolateral to the umblicus omentum coming out from the abdomen.
(3)Abrasion 4 c.m. x 3 c.m. On medial and distal part of sole of left foot. Corresponding cuts of injuries Nos.1 and 2 are present on Kamiz.
Injuries Nos.1 and 2 were K.U.O. Whereas the rest simple. Injuries Nos. 1 and 2 were caused by sharp weapon and the injury No.3 by blunt weapon.
Condition of the patient was serious at the time of medical examination. B.P. Was not recordable, pulse 140 per minute and weak. Patient was cold and sweating.
Exh. P.G. Is correct carbon copy of his M.L.R. The injured was referred to Lahore and afterwards he declared injury No.1 as simple and injury No.2 as grievous.
On the same day at the same time he medically examined Barkat son of Nawab Din and noticed the following injury on his person:-- (1)Incised wound 2 c.m. x 1/2 c.m. Going deep on the right side of abdomen 3 c.m. From midline 3- 1/2 c.m. From castel margin.
Corresponding cut was present on Saluka and shirt. Injury kept under observation. It was caused by sharp weapon. Exh. P.H. Is correct carbon copy of his M.L.R. Afterward the injury was declared grievous.
6. The appellants/accused were examined under section 342, Cr.P.C. And under section 340, Cr.P.C.
Shabbir stated that on 29-6-1985 his were Kalsoom Bibi complained that Azhar Javed had insulted her, he went to enquire, on which Azhar Javed, Yasin and Barkat injured him, he returned to his house and later on the complainant party injured- his brother-in-law Balam Naz, who in his self--- defence caused injuries to the complainant party and this is a false case registered at the instance of complainant party.
Accused Balam Naz stated that on 29-6-1985 when he was returning after purchasing vegetables at about 2-30 p.m. He was informed that Azhar Javed had insulted his sister Kalsoom Bibi and the complainant party had injured his brother-in-law, Shabbir. He reached the place of complainant party on which Azhar Javed and Yasin etc. Started injuring him and they were about to kill him; fearing his death, he snatched Chhuri from Yasin P.W. And inflicted Chhuri injury to witnesses.
Accused Zakar Hussain stated that he was present in Malikwal at the time of occurrence and is falsely implicated being brother of Balam Naz.
Accused Batool Begum stated that she owned a house in Gulzar Colony and she was not ejected from any house and that her daughter Kalsoom Bibi was insulted by the complainant party, afterwards his son Balam Naz and son-in-law Shabbir were also injured by the P.Ws. And this case was falsely got registered against their entire family.
7. In their defence two D.Ws. Were produced.
D.W.1 Allah Ditta son of Miran Bux resident of Malikwal stated that Zakar accused is his son-in-law and at the time of occurrence he was in Malikwal.
D.W.2 Mst. Kalsoom Bibi were of Shabbir Hussain stated that she had gone to take medicine for her ailing child. When she reached in front of Azhar Javed's shop, he caught hold her from her breast.
She abused him on which Azhar Javed slapped her. She returned home, informed Shabbir Hussain and afterwards Shabbir Hussain and Balam Naz reached home in an injured condition. Later on she told whole story to the Thanedar.
8. Learned counsel for the appellant and the State were heard at length and the record of the case perused with their help.
9. Learned counsel for the appellants assailed the impugned judgment and submitted that the prosecution had failed to prove the motive alleged and that the explanation of the appellants was more plausible, when placed in juxtaposition to the version of the prosecution. Further submitted that the eye-witnesses were interested; related inter se and were inimical to the appellants. Further submitted that the evidence of the said witnesses was not reliable as they had suppressed the injuries suffered by Balam Naz appellant. Further submitted that as all the accused were not armed, therefore, charge under section 307 read with sections 148 and 149, P.P.C. Was not made out and as such has caused prejudice to the appellant. Further submitted that at best it was a case of free fight and further submitted that at best only offence under section 326, P.P.C. Was made out.
10. However, in the alternative, the learned counsel submitted that the appellants had already suffered imprisonment of two years two months and 14 days, and suffered -the agony of protracted trial for the last almost 6 years and that as such it would meet the ends of justice if their sentence was reduced to one already undergone and the fine imposed was set aside.
11. On the other hand, the learned counsel for the State while conceded that the sentence imposed on the appellants may be reduced to one already undergone, contended that under such circumstances the fine imposed on them may be enhanced after due notice.
12. In view of the above discussion, as the appellants have already suffered the agony of protracted trial and further suffered imprisonment of over two years and two months and 14 days, therefore, while dismissing the present appeal, the sentence awarded to the appellants is hereby reduced to one already undergone and the fine imposed is set aside. They are on bail their bail bonds stand discharged.