KHALIL-UR-REHMAN RAMDAY, J: --Fayyaz, Gulzar their sister Mst. Amina and their father Ibrahim were tried for the murder of Rehmat deceased and for having launched a murderous assault on Ismail, Nawab, Aziz, Mst. Zahida and Ghulam Muhammad P.Ws.
2. Through his judgment, dated 15-3-1988, a learned Additional Sessions Judge at Kasur found Mst.
Amina and Ibrahim entitled to the benefit of doubt and consequently acquitted them of all the charges levelled against them. He, however, found Fayyaz and Gulzar guilty of the murder of Rehmat deceased and after convicting them under section 302/34, P.P.C. Sentenced Fayyaz to death and Gulzar to imprisonment for life with a fine of Rs.5,000 to be paid by each of these two convicts or to suffer two years' R.I. In default of payment of this fine. Each one of these two convicts was also directed to pay a sum of Rs.5,000 to the heirs of the deceased or to undergo six months'
R.I. In default of payment of this compensation.
3. Fayyaz and Gulzar convicts were also found guilty of the charge under section 307/34, P.P.C. And each one of them was sentenced to suffer seven years' R.I. Therefor.
4. All the sentences of imprisonment were directed to run concurrently and the two convicts were also given the benefit of the provisions of section 382-B, Cr.P.C.
5. Murder reference No.89 of 1988 seeks confirmation of the death sentence imposed on Fayyaz convict who alongwith his brother Gulzar challenges the above-noticed convictions and sentences recorded against each one of them through Criminal Appeal No.490 of 1988.
6. Both these matters are being disposed of together through this single judgment.
7. Narrating the occurrence, through F.I.R. No.173 dated 7-9-1986 recorded at Police Station Sarai Mughal of District Kasur at 9-15 p.m., Ghulam Muhammad P.W. Had stated that his elder brother Rehmat deceased was running a shop adjacent to their house and that Mst. Amina Bibi accused came to the said shop on the pretext of purchasing vegetables and was followed by Fayyaz and Gulzar convicts who were armed with knives and by Ibrahim accused who was empty-handed.
8. Ghulam Muhammad complainant had further alleged that immediately after reaching the shop in question, Fayyaz convict asked Rehmat deceased as to why he had cut jokes with Mst. Amina accused and dragged him into the street after catching him from the collar, whereupon Ibrahim accused exhorted that Rehmat deceased be not spared.
9. Ghulam Muhammad P.W. Had further claimed that thereupon Fayyaz convict inflicted a knife blow on the abdomen of Rehmat deceased and Mst. Amina accused caught Rehmat deceased from the collar of his shirt. Gulzar convict then gave a knife blow on the right flank of Rehmat deceased. Ghulam Muhammad complainant and his were Mst. Zahida P.W. Came forward to rescue Rehmat deceased. Fayyaz convict inflicted an injury on the person of Ghulam Muhammad complainant and Gulzar convict gave three successive blows on the person of Mst. Zahida P.W.
With his knife. On the alarm allegedly raised by the complainant party, small, Nawab and Aziz P.Ws.
Also reached the spot and intervened to rescue the complainant party at which Gulzar and Fayyaz convicts inflicted injuries on the persons of these three P.Ws. Also.
10. Having seen Rehmat deceased fall on the ground, all the four alleged assailants escaped from the place of occurrence.
11. Ghulam Muhammad complainant had further disclosed that about ten days prior to the occurrence, Fayyaz convict had sought to take a bath on a handpump installed in the courtyard of the complainant's house after jumping over the wall separating the house of Fayyaz convict and the complainant at which, Rehmat All deceased had reprimanded Fayyaz convict who felt insulted, which resulted in an altercation between the two and that it was on account of this grievance, that the accused persons had launched a premeditated attack on Rehmat deceased which had resulted in the damage abovenoticed.
12. As against this prosecution claim, the defence plea divulged by Fayyaz deceased was that at the time of occurrence, his father Ibrahim accused was present in his field and his brother Gulzar accused who was the Imam of the village mosque was present in the mosque and his sister Mst.
Amina had gone to the shop of Rehmat deceased to purchase vegetables where Rehmat deceased cu; jokes with her and even held her by her arm whereupon, Mst. Amina rushed back home and complained to him about the conduct of Rehmat deceased.
13. Fayyaz convict had further claimed that this incident involving the honour of his sister had suddenly and gravely provoked him as a result of which, he lost control of himself and after reaching the shop of Rehmat deceased, he picked up a knife from his shop and inflicted injuries on the person of Rehmat deceased. He further claimed that the injured P.Ws. Also reached the spot and tried to overpower him whereupon, due to fear of beating and apprehending danger to his life at the hands of these P.Ws., he injured them also and escaped.
14. The occurrence, its time and place are thus not denied by the defence. The only questions which require resolution are whether the occurrence in question had taken place in the manner and for the reason alleged by the prosecution or in the manner and for the reason claimed by the defence and whether it was Fayyaz convict alone who had participated in the occurrence in question or whether he was assisted by Gulzar convict also in the same.
15. As has been mentioned above, Ibrahim and Mst. Amina have since been acquitted of all the charges and their acquittal has not been challenged either by the State or even by the complainant.
16. The motive set up by the prosecution allegedly leading to the occurrence in question does not inspire confidence.
17. The complainant and the accused party are immediate neighbours of each other. No reason has been offered by the prosecution, which could have tempted Fayyaz convict to jump over the wall intervening the two houses only to take a bath at the handpump in the courtyard of the complainant party. It has not even been asserted by the prosecution that the accused party did not have a handpump in their house or had no bathing arrangement for themselves.
18. As against this, the reason offered by the defence resulting in the occurrence in question was that Rehmat deceased had teased and cut jokes with Mst. Amina who was a young female of about twenty years of age, had become a widow and was living in her father's house.
19. Muhammad Siddique S.I./I.O. (P.W.20) admitted in his cross---examination that it had come to his notice during the course of his investigation that Rehmat deceased had cut jokes with Mst.
Amina.
20. Ghulam Muhammad complainant P.W. Also admitted in his cross---examination that when Fayyaz convict attacked Rehmat deceased, he was in angry mood and had asked Rehmat deceased as to why he had cut jokes with his sister.
21. A similar admission was made by Mst. Zahida (P.W.16) and even Ismail, Nawab and Aziz P.Ws.
Had admitted that Fayyaz and Gulzar convicts were in a rage and in angry mood at the time when they had launched an attack on Rehmat deceased.
22. Besides the statements made to this effect by the P.Ws. At the trial, Ghulam Muhammad complainant had stated at the very outset in the F.I.R. Itself that immediately on reaching the shop of Rehmat deceased and before inflicting any injury on him, Fayyaz convict had asked Rehmat deceased as to why he had cut jokes with his sister Mst. Amina.
23. The defence plea to the extent of the reason which led to the occurrence in question is thus not only probable but is even reasonable and believable as against the prosecution claim with respect to the same and we hold accordingly.
24. Fayyaz convict is a young boy of about eighteen years of age and his having flown into a rage on hearing of Rehmat deceased having teased and cut jokes with his young widowed sister, is thus understandable.
25. Gulzar convict is an Imam mosque. The time of occurrence was immediately after the Maghrab prayers and Gulzar convict thus having reached the place of occurrence, to join his brother Fayyaz convict, is also believable.
26. In the occurrence in question, one person had lost his life and rive others had received injuries on their persons. The number of victims and the number of injuries received by such victims in the occurrence in question rule out the possibility of the entire damage having been done by just one young boy of eighteen years of age without having been overpowered or injured in the process.
The injuries received by Gulzar convict and Mst. Amina also establish their presence at the place of occurrence at the relevant time.
27. Consequently, we hold that it was not Fayyaz convict alone who was responsible for the injuries caused on the complainant side but that even Gulzar convict had participated in the occurrence in question and had assisted his brother and his co-convict in the said occurrence.
28. In view of our findings that the occurrence in question had been occasioned because of an offence offered to the honour of Mst. Amina by Rehmat deceased, the conviction of the two convicts recorded under section 302/34, P.P.C. Cannot be maintained. It has also come on record that the five injured P.Ws. Had received these injuries only when they had attempted to rescue Rehmat deceased. In the circumstances, the conviction of the two convicts even under section 307/34, P.P.C. Cannot be sustained.
29. We, accordingly, set aside the convictions of Fayyaz and Gulzar convicts recorded under section 302/34 and under section 307/34, P.P.C. As also the sentences recorded against them for the commission of these offences.
30. They are, however, found guilty of an offence punishable under section 304, Part I of the Pakistan Penal Code and each one of them is sentenced to ten years' R.I. With a fine of Rs.2,000 or to suffer six months' R.I. In default of payment of this fine.
31. The two are also found guilty and convicted under section 326/34 of the Pakistan Penal Code for having caused grievous injuries on the persons of Ismail and Aziz P.Ws. Each one of them shall suffer three years' R.I. And pay a fine of Rs.1,000 or undergo three months' S.I. In default of payment of this fine on account of this charge on two counts. The fine, if realised shall be paid to Aziz and Ismail P.Ws. In equal shares.
32. Fayyaz and Galzar convicts are further found guilty of an offence punishable under section 324/34 of the Pakistan Penal Code for having caused simple injuries to Ismail, Nawab, Aziz, Mst.
Zahida and Ghulam Muhammad P.Ws. And each one of them shall suffer one year's R.I. And pay a fine of Rs.1,000 or undergo three months' S.I. In default of payment of fine on five counts. The amount of fine, if realised, shall be paid to all these five P.Ws. In equal shares.
33. All the sentences of imprisonment shall run concurrently and the benefit of the provisions of section 382-B of the Code of Criminal Procedure shall also be allowed to both the convicts.
34. In view of the conviction under section 302/34 of the Pakistan Penal Code and the sentence of death to Fayyaz convict having been set aside, there is thus no question of confirmation of the said sentence.
35. Murder Reference No.89 of 1988 is answered accordingly.
36. Criminal Appeal No.490 of 1988 is also disposed of in the above terms.