KHIZAR HAYAT, J.- Vide judgment, dated 17.2.1988, Additional Sessions Judge, Jhang, has convicted and sentenced Adil (47), his sons Umar Hayat (24) and Falak Slier (20), his brother's wife Mst.
Bakhan (53) and her son Muhammad Iqbal (26) to one year's R.I. Each under section 148 PPC; to 6 months' R.L, each under sections 324/149 PPC; to 5 years' R.L, and a fine of Rs.1,000/- each of in default of payment of fine to undergo 3 months' R.L, each (on three counts) under section 307/149 PPC; and under sections 302/149 PPC (two counts) Umar Hayat and Falak Sher have been sentenced to death while Mst. Bakhan, Adil and Iqbal, to imprisonment for life and a fine of Rs.5,000/- each on each count or in default of payment of fine to undergo 6 months' R.L, each. The convicts have jointly filed instant appeal (Cr.A.No.265/88) and the trial Court has submitted reference under Section 374 Cr.P.C, for confirming the death sentence awarded to Umar Hayat and Falak Sher. Both these matters are being disposed of by this single judgment.
2. The prosecution case briefly is as follows: On 17.5.1986 at 9 A.M. Haqnawaz complainant (PW.10), his father Manak (deceased), his mother Msl. Saban (PW.14) and his wife Mst. Zubaida (PW.12) were present at their Dhari while Sarfaraz (deceased) and Allah Bakhsh (PW-13) brothers of the complainant and Allah Yar (PW. Ll) husband of complainant's sister were cutting fodder from the land of Ahmad Nawaz Somera, two acres away from their Dhari (house). Their donkey, which was tethered nearby, some-how got itself released and strayed into 'Shaftal' field owned by Adil, appellant, situated near their Dhari (house). Allah Yar PW went there to bring his donkey back. Vie was still at a distance of 1 kanal from the field when he saw Umar Hayat, Falak Sher and Mst.
Bakhan, appellant, armed with hatchets, Adil appellant armed with Dangori (slick) and Muhammad Iqbal appellant with a Pahora, sitting there. Falak Sher and Umar Hayat abused him saying, why he did not keep his donkey under control. Then all the accused advanced toward him shouting that they would not spare him. Allah Yar raising alarm ran for life towards the Dhari of Manak (deceased). The appellants chased him and overtook him in a field situated about three acres short of Dhari of the complainant. Hearing Allah Yar's alarm Haqnawaz, Allah Bakhsh, Mst.
Saban, Mst. Zubaida PWs and Manak (deceased) ran from their Dhari while Sarfaraz (deceased) and Allah Bakhsh PW from the nearby field (where they were cutting fodder) towards the place of occurrence for rescuing Allah Yar PW. They were still in the way, when Umar Hayat, appellant, gave a hatchet blow at the chest of Allah Yar PW and Falak Sher appellant gave him hatchet blow at his face and felled him. Sarfaraz went forward to rescue him but Umar Hayat struck hatchet on his neck which brought him down. Manak (deceased) bowed down to help his son Sarfaraz (deceased) whereupon Falak Sher inflicted hatchet blow at his back. Mst. Bakhan (appellant) gave him another hatchet blow on his back. Manak (deceased) due to these injuries also fell down. Allah Bakhsh PW tried to rescue Manak, but he was given two dang blows by Adil while Muhammad Iqbal struck Pahora on his left hand. Mst. Saban and Mst. Zubaida intervened to save Allah Bakhsh but Muhammad Iqbal appellant belaboured them with "Pahora" as a result of which both the ladies fell down.
Mst. Zubaida was further given "Dangori" blow by Adil. Haqnawaz went forward to save Mst. Saban whereupon Muhammad Iqbal gave him Pahora blow on his left shoulder. Muhammad Iqbal gave Pahora blows to Allah yar also on his left arm and Mst. Bakhan gave him a hatchet blow on his eye while he was lying unconscious. Falak Sher then tried to assault Haqnawaz but the latter picked up sickle lying there and struck it on his head. The accused parly thereafter decamped. Manak and Sarfaraz both had died on the spot.
3. Motive for the attack was stated to be that M?/.Sattan daughter of sister of Adil appellant was married to Sarfaraz (deceased) at the instance of Allah Yar PW which was not taken in good taste by the accused party as Adil appellant wanted her hand for his own son Falak Sher. On this account there existed bad blood between them. The accused party, therefore, finding Allah Yar's donkey strayed into their Shaftal field made it an excuse to attack and murder Allah Yar PW and annihilate the entire progeny of Manak (deceased).
4. Maqbool Hussain SI (PW.15) investigated the case. He removed blood stained earth from the spot. He sent the deadbodies to the mortuary for postmortem examination and the injured witnesses were sent to hospital for medical examination and treatment under police escort.
Muhammad Khan Inspector Police (PW.16) arrested Umar Hayat, Falak Sher and Adil, appellants, on 18.5.1986, Muhammad Iqbal appellant on 20.5.1986 and Mst. Bakhan appellant on 2.6.1986. Umar Hayat led to the recovery of blood-stained hatchet (P.6) from his Dhari on 22.5.1986 which was seized under memo (Ex.PK). On the same day Falak Sher got recovered blood-stained hatchet (P.7) from his Dhari vide memo (Ex.PR). These recoveries were attested by Maralib Ali (PW.9) and the Investigating Officer (PW.16). Sola (P.8) was recovered from Adil, Pahora (P.9) from Muhammad Iqbal and hatchet (P.5) from Mst. Bakhan, separately. They were not stained with blood. Hatchet (P.6) recovered from Umar Hayat and hatchet (P.7) recovered from Falak Sher were found stained with human blood vide Chemical Examiner's Reports (Exs.PDD and PBB) and of the Serologist (Exs.PGG and PFF).
5. DrA.B.Saleem (PW-4) on 17.5.1986 at 5 pm/5.45 pm conducted postmortem examination on the dead bodies. He found one incised wound on deadbody of Sarfaraz (deceased) measuring 15 cm 7 cm cutting the neck. Sarfaraz (deceased) according to the doctor died immediately due to culling of vertebrae C 7 and T 1, spinal cord and blood vessels leading to Shock. On the dead body of Manak (deceased) he noted three incised wounds, namely )5 cm x 6 cm x thoracic wall; 8 cm x 3 cm x thoracic wall; and a muscle deep injury on right forearm besides a contusion on right upper arm. On opening the thorax, the thoracic wall was found cut on the back of left chest between 3rd to 10th rib. Below injuries No.1 and 2, both right and left lungs were damaged. In the opinion of the doctor Manak (deceased) died of internal and external bleeding, collapse of left lung and shock produced by the injuries on the back. A contused swelling 6 cm x 2 cm on the lop of left shoulder was noted on the person of Haqnawaz PW. Four injuries, including three incised wounds, were found on the person of Allah Yar PW. His left lung was coming out of a chest injury, and patient was restless and serious, so his chest injury was declared as dangerous. To life and his left arm found broken under injury No.3 was declared as grievous hurt.
6. Lady Dr. Zubeda Akhtar (PW.7) on 17.5.1986 at 2.30 p.m. Medically examined Mst. Zubaida and noted on her person, Five simple injuries caused with blunt weapon, whereas three injuries caused with blunt weapon and simple in nature were found on the person of Mst. Saban. They were caused within duration of 5 to 6 hours.
7. Dr. Muhammad Sabir Chaudhary (PW.1) on 18.5.1986 between 8.35 p.m. To 8.45 p.m. Carried out medical examination of Adil, Falak Sher and Umar Hayat, appellants. On the person of Adil he noted four abrasions, of different dimensions ranging between 1 cm x .5 cm to 2.5 cm x 1 cm, on right hand, left shoulder, left chest with one contused swelling 5 cm x 4 cm on the back of right hand.
These injuries were X-Rayed, but ultimately they were found simple.
On the person of Falak Sher the doctor noted a lacerated wound 3 cm x 1 cm x scalp deep on left side of head 9 cm above the left ear. It was simple in nature caused with blunt weapon.
On the person of Umar Hayat the same doctor found five abrasions of different dimensions ranging between .5 cm x .5 cm to 7 cm x .2 cm, on left arm, right arm, epigastrium and left chest, all caused with blunt weapon and declared as simple.
8. At the trial, the prosecution examined I6 witnesses. Haqnawaz (PW.10), Allah Yar (PW. Ll) Msf.
Zubeda (PW.12), Allah Bakhsh (Pw.13) and Mst. Saban (PW.14) narrated the occurrence as mentioned in para 2 above. AS1 Maqbool Hussain (PW.15) and Inspector Muhammad Khan (PW.16) staled about the investigations conducted by them Medical evidence is furnished by Dr. A.B.
Saleem (PW.4) and Lady Dr. Zubeda Akthar (PW.7) who proved injuries of the deceased and the PWs, while Dr. Muhammad Sabir (PW.1) proved the injuries found on the persons of Umar Hayat and Falak Sher, accused/appellants.
9. When examined under section 342 Cr.P.C., Muhammad Iqbal and Mst. Bakhan denied their presence and participation in the occurrence whereas Umar Hayat, Falak Sher and Adil admitted their presence and claimed to have acted in self-defence, which, in the words of Umar Hayat, is as follows: "On the eventful day, the donkey of P.W. Allah Yar trespassed into my crop whereon I rounded it and tethered at my dhari. The P.W. Came to take it back but I disallowed him. There ensued exchange of abuses between us. The P.W. And his wife went to deceased Manak, who was a die-hard person. My father and brother accused Falak Sher were at the eventful time wayback home from the dera of Bahadar and Noora where we had joint cultivation with them. They were assaulted by Manak and the P.Ws. On coming to know of it, I, under the natural impulse, took hatchet and went to the scene to avert the assailants and to save the lives of my father and brother and thus injured Allah Yar, Sarfraz and -Manak. Accused Falak Sher was then armed with lathi who caused injuries with it to the P.Ws. Accused Mst. Bakhan and Iqbal were not present at the scene of occurrence. The complainant party and we the accused belong to one and the same family. It was unfortunate occurrence which took place all of a sudden, in which we acted in self-defence."
They produced AS1 Aman Ullah as DW 1 who produced register of FIRs pertaining to the year 1961 to show that Manak was previous convict.
10. Learned trial Court considering the material on record, accepted the evidence of motive, the ocular testimoriy and the recoveries of weapons of offence effected from Umar Hayat and Falak Sher appellants and consequently convicted and sentenced all the accused/appellants as indicated in para 1 above.
11. Learned counsel appearing on behalf of the appellants contended that both the parlies are related inter-se, they cultivate adjacent lands and also live near each other, therefore, had there existed any ill will between the parties over Sarfaraz's marriage with Mst. Sattan^ solemnized on 8.3.1986, then there must have occurred between them a quarrel before the instant occurrence.
Therefore, he argued that Sarfaraz's marriage did not provide immediate cause for the appellants to attack the .Complainant party on the day of occurrence. The second motive regarding straying of complainant's donkey, he said, leans more on the side of the complainant than on the accused side as after Umar Hayat appellant refused to return Allah Yar PW's donkey, it must be the complainant party who would have felt aggrieved and mounted attack on the accused, and the latter would have acted in self-defence. The defence story, it is argued, is reasonably probable and deserves to be accepted in preference to the prosecution story, consequently, the appellants are entitled to the grant of benefit of doubt. Lastly he argued that in any case the occurrence had taken place suddenly without premeditation, therefore, the element of community of object is also wanting, hence the offence committed by the appellants at the most would be covered under Section 304 PPC and also the principle of vicarious liability would not be attracted. In the result, each accused/appellant could be held responsible for his own individual act. On the other hand, learned counsel for the State has opposed the appeal and defended the conviction and sentence recorded by the learned trial Court as being justified and appropriate.
12. We have considered the contentions of the learned counsel for the parties with cafe and also perused the record minutely with their assistance.
13. Haqnawaz, complainant, (PW.10), Allah Bakhsh (PW 13) and Sarfaraz (deceased) are sons of Manak (deceased). Mst. Saban (PW.14) is wife of Manak (deceased), Mr/.Zubeda (PW.12) is wife of Haqnawaz, complainant and Allah Yar (PW. Ll) is the nephew and also son-in-law of Manak. On the accused side, Umar Hayat and Falak Sher, appellants, are the sons of Adil, appellant. Muhammad Iqbal, appellant, is the nephew of said Adil, while Mi/.Bakhan alias Bakho, appellant is mother of Muhammad Iqbal, appellant. It is note-worthy that Allah Yar PW is brother of Adil, appellant, while Manak (deceased) was their real uncle. It is thus clear that both the parties are closely related inverse. Their lands are also adjacent and their Dharies (houses) too are not very far of from each other. According to the site plan (Ex.PD) prepared by Muhammad Yousuf, Revenue Patwari, (PW3), the house of Manak (deceased) is in Killa No.9 of Square No.18 and that of Adil, appellant Is in Killa No.24 of Square No.17. The distance between the two is about 7/8 acres. The occurrence had taken place in Killa No.10 of Square No.18 which is at 2/3 acres' distance from the house of the complainant and about 4/5 acres away from the house of the accused/appellants. The parties live and work in the fields situated closely therefore, they must be meeting each other almost every day.- Sarfaraz (deceased) was married to Msf. Sattan on 8.3.1988 (as per Nikah Nama) i.e. 1h months prior to the occurrence. If the accused party were seriously opposed to this marriage and wanted to attack them for taking its revenge then they would have not waited for straying of complainant's donkey in their field on the day of occurrence. The contention of the learned counsel for the appellants that because no untoward incident took place between the parties for 2/3 months after Sarfaraz deceased's marriage with A/sf. Sattan, therefore, this marriage cannot be taken to have served as motive for the occurrence, is not without substance. We are not convinced that Adil, appellant, had at all asked for the hand of Mst .Sattan for his son Falak Sher, appellant, particularly because nobody from A/j/.Sattan's paternal side has appeared to say so. Even Mst.
Sattan, a member of complainant's family and widow of Sarfaraz (deceased) did not choose to enter the witness box to state about this fact. It therefore follows that the accused party did not harbour an ill will against the complainant party because of Mst. Sattan's marriage with Sarfaraz (deceased). It is, however, a common ground between the parties that the incident sparked off when Allah Yar PW went to bring back his donkey which strayed into the fields of accused party. But as to the manner in which the occurrence took place, each party blames the other to be the aggressor.
14. The occurrence is admitted. Time and place of occurrence is also not disputed. Presence of Haqnawaz, Allah Bakhah, Allah Yar, Mst. Suban and Msf. Zubaida, PWs, and the two deceased is established by the fact that they suffered injuries during the transaction. Their presence is not denied by the defence also. From the accused side Umar Hayat, Falak Sher and Adil, appellants, admit that they mid caused injuries to both the deceased and the injured PWs, but they claim to have done so in the exercise of the right of their private defence. Muhammad Iqbal and his mother Mrf. Bakho, appellants, have denied their presence and participation, but there exists over- whelming, evidence on record implicating them. It is common knowledge that in our rural society the women folk work along-with their men in the fields and instances are not lacking where they participated in armed conflicts along-with their men, either as rescuers or assailants. In this case A/s/.Saban and Mrt. Zubaida PWs were injured while rescuing their near-dears whereas Ms/.Bakho, appellant, joined hands with the assailant parly. Mst. Bakho appellant and her son Muhammad Iqbal -have been consistently implicated by all the witnesses whose presence at the time of occurrence, as observed earlier, is not open to doubt. They have been attributed hot only an active role but specific injuries also. Mst. Bakho has been ascribed a fatal injury with hatchet to Manak (deceased) and simple hurt to Allah Yar PW, whereas simple injuries with Pahora are attributed to Muhammad Iqbal, we have no reason to disbelieve the eyewitnesses on this point which appears to be correct. If the prosecution wanted to put her (Msf. Bakho) to utmost grief then it would have placed hatchet in the hands of her son Muhammad Iqbal, appellant, instead of Pahora and ascribed the fatal injury of Manak to him, which they have not done. We therefore, hold that Mr/.Bakho and Muhammad Iqbal, appellants had participated with other appellants.
15. The next question which falls for determination is as to which of these parties was ir. Fact the aggressor. We have reviewed the entire evidence on record and find that the prosecution witnesses have somewhat exaggerated in saying that when Allah Yar reached appellant's Shaftal field for bringing his donkey back, all the accused/appellant were sitting there duly armed with deadly weapons who on seeing Allah Yar advanced to attack him simultaneously raising a lalkara that they would not spare him. If it were so then they would have- caused numerous injuries to Allah Yar PW by overtaking him quite near to their Dhari and none from the complainant party would have arrived there to rescue him. We are of the view that initially verbal encounter took place between Umar Hayat appellant and Allah Yar PW, wherein they exchanged abuses. Umar Hayat tried to attack him who (Allah yar) started running towards Dhari of Manak to save his life.
Umar Hayat chased him duly armed. The commotion thus raised attracted the family members of both of them including their women folk. The number and nature of the injuries suffered by the complainant party as against few abrasions received by the appellants made it quite clear that the latter party was armed to teeth and was also the aggressor, whereas the complainant party was unarmed. As for the defence version that as sequal to the quarrel between Umar Hayat appellant and Allah Yar PW, Adil and Falak Sher, appellants, while^returning from the Bhaini of Bahadar and passing near the complainant's Dhari, they were waylaid by the two deceased and the five injured PWs with deadly weapons, is highly improbable and incredible because in that case the said two appellants would have been beaten to pulp before Umar Hayat could arrive from a distance of 4/5 acres and furthermore it is not believable that Umar Hayat single handedly, was able to cause death of two persons and injuries to five PWs who according to the defence, were armed with deadly weapons. We, therefore, feel no hesitation in rejecting the defence story outright as being highly improbable and unreasonable. Again, it is worth noting that Manak and Sarfaraz, both the deceased persons, suffered injuries on their backside which fact strongly suggests that they were attacked from behind while posing no threat to the life of their assailants, hence the right of private defence of person was not at all available to the assailants-appellants.
16. From the afore-going discussion we have come to the conclusion that the appellants reached the spot one after the other on hearing the noise made by Allah Yar PW and Umar Hayat appellant and not as a result of preconcert as stated by the prosecution and as such they are not guilty of committing the offence of rioting armed with deadly weapons and therefore each one of them is held responsible for his own individual act. Consequently, we hereby set aside the conviction and sentence of the appellants recorded under section 148 PPC and acquit them of this charge. And qua their conviction and sentence recorded under other charges we order as under:-
(i) Umar Hayat, appellant, caused fatal injury to Sarfaraz, deceased, and an injury (found to be dangerous to life) to Allah Yar PW with hatchet therefore, his conviction under section 302 PPC regarding the murder of Sarfaraz, deceased, and under section 307 PPC regarding the injury of Allah Yar PW, are maintained. The death sentence awarded to him under section 302 PPC (one count) is confirmed. However, his conviction under section 302/149 PPC regarding the murder of Manak, deceased, and under section 324/149 PPC for causing injuries to the PWs are set aside and he is acquitted of those charges.
(ii) Falak Sher and Mrt. Bakhan, appellant, caused fatal injuries to Manak, deceased, and one simple hurt each on the face of Allah Yar PW with hatchets, therefore, the conviction of Falak Sher under section 302 PPC (one count) is maintained but his sentence is commuted to imprisonment for life as his case is at par with that of Mrf. Bakhan who has been awarded lesser penalty on this count. However, the amount of fine and the sentence of imprisonment awarded in default thereof is maintained. The conviction and sentence of Falak Sher under section 324 PPC and that of A/st.
Bakhan under section 302 (one count) and 324 PPC are maintained. Their conviction and sentence under section 302/149 PPC qua the murder of Sarfaraz, deceased, is hereby set aside and they are accordingly acquitted.
(iii) The conviction and sentence of Iqbal and Adil, appellants under section 302/149 PPC (two counts) is hereby set aside and they are acquitted of the charges because they had not caused any injury to Sarfaraz and Manak, deceased persons. However, their conviction under section 324/149 PPC for causing hurt to Mr/.Saban, Mrt. Zubeda and Haq Nawaz PW is altered to one under section 323 PPC (three counts) for they had used blunt weapons for causing hurt to them and their sentence is also maintained which they have already served.
(iv) The conviction and sentence of Iqbal, appellant, under section 307/149 PPC is set aside and he is acquitted of the charge.
(v) The conviction of Adil, appellant, under section 307 PPC is maintained but his sentence is reduced to the period already undergone which comes to about 4-1/2 years.
17. In a nutshell, the appeal is partly allowed in the terms indicated above. The death sentence awarded to Umar Hayat, appellant, for the murder of Sarfaraz, deceased, is confirmed but the death sentence awarded to Falak Sher, appellant, qua the murder of Manak, deceased, is not confirmed. Iqbal, Adil and Mst. Bakhan, appellants, were allowed bail by this Court, vide order, dated 20.5.1990. Iqbal and Adil are discharged of their bail-bonds while Mst. Bakhan shall be taken into custody and committed to jail to serve remaining period of her sentence.