MUHAMMAD AMIR MALIK, J.--- Additional Sessions Judge, Sargodha, vide his judgment dated 28- 8-1988 convicted Mian Khan, Anwar, Manzoor alias Joori, Faizul Hassan alias Faizi appellants and Pappu Khan co---accused and sentenced them as under:- (i)Mian Khan under section 302, P.P.C. Death sentence and a fine of Rs.5,000 or in default thereof six months' R.I.
(ii)Anwar under section 302, P.P.C. Life imprisonment and a fine of Rs.5,000 or in default thereof six months' R.I.
(i.e) Manzoor alias Joori under section 323, P.P.C. On two counts for injuring Abid Mansoor and Mojeeb Aslam (P.Ws.7 and 8) one year's R.I. Each and a fine of Rs.1,000 each in default thereof two months' R.I. Each.
(iv) Faizul Hassan and Papu Khan under section 324, P.P.C for injuring Mojeeb Aslam (P.W.8) two years' R.I. Each and a fine of Rs.2,000 each or in default thereof three months' R.I. Each all under section 148, P.P.C. Two years' R.I. Each and a fine of Rs.2,000 each or in default thereof three months'
R.I. Each.
The sentences were ordered to run concurrently except that of Manzoor alias Joori, which were to run consecutively.
Half of the fine, if realised, from Mian Khan and Anwar appellants was ordered to be paid to the heirs of the deceased. Half of the fine if realised from Manzoor, Pappu Khan and Faizul Hassan, was ordered to be paid to the respective injured P.Ws.
The convicts except Pappu have separately appealed and the matter is also before us for confirmation of the death sentence under section 374, Cr.P.C. It is proposed to dispose of the Reference and the appeals by a single judgment.
2. The occurrence took place near the shop of Muhammad Rafiq Barbar near Noori Gate, Sargodha at 8-30 a.m. On 25-10-1987. Abid Mansoor complainant (P.W.7) made statement (Exh. P.O.) to Shafqatullah Khan, S.I./S.H.O. (P.W.10) on the same day at 10-15 a.m. In D.H.Q. Hospital, Sargodha. On its basis formal F.I.R. (Exh.P.O./1) was registered by Muhammad Rafiq, M.H.C. (P.W.1.1) at 10-35 a.m.
3. The story given in the F.I.R. Was that the complainant alongwith Hamayun Asif (deceased) started for Sargodha from their Chak at 8-00 a.m. By a motor-cycle. Mojeeb Aslam (P.W.8) was also with them on a separate scooter. At 8-30 a.m. They reached Noori Gate near the shop of Muhammad Rafiq Barbar. There Anwar appellant, a hawker at the Bus Stand, empty handed, Mian Khan, Faizi appellants and Pappu accused with daggers and Manzoor appellant with hockey stick, were present. They raised Lalkara and assaulted them. Manzoor gave blow in the head of the complainant. He fell down the motor-cycle. Anwar gave Japhha to the deceased and Mian Khan inflicted upon him a dagger blow on the left thigh. Manzoor gave another hockey blow to the complainant and Pappu gave a dagger blow. Faizul Hassan gave a dagger blow in the back thigh of Mojeeb Aslam P.W. Followed by a hockey blow on the arm. In the meantime, Muhammad Aslam (P.W.9) and Mazhar Javaid (given up P.W.), reached the spot and witnessed the occurrence. The accused left the spot raising Lalkaras. The injured were taken to the hospital where Hamayun Asif expired.
4. The motive given was that on 24-10-1987 at about 12-3() p.m. The complainant and Anwar appellant had a dispute, there had been exchange of abuses and Anwar was beaten by the complainant. Anwar had extended threat.
5. Dr. Naveed Asghar (P.W.2) medically examined Abid Mansoor P.W. On 25-10-1987 at 9-00 a.m. He was having a lacerated wound on the back of head and a contused swelling on the left chest. The injuries were by blunt object within a duration of two hours and were simple in nature.
At 9-40 a.m. The doctor examined Mojeeb Aslam (P.W.4) who was having two incised wounds and one abrasion. Two of the injuries were by sharp---edged weapon and the third by blunt. These were all simple.
At 9-00 a.m. The doctor had examined Hamayun Asif (the deceased). He was having an incised wound 2 x 1 c.m. In front of the left thigh 13 c.m. From interior superior illiac supine. He was unconscious pulse was not palpable and blood pressure not recordable. There was profuse bleeding and he was in severe shock. The injury was by a sharp-edged weapon and of about two hours duration. He conducted the post-mortem examination on his dead body at 4-10 p.m. And observed the same injury. On dissection/anterior and posterior walls of the left femoral artery were found damaged. The death was due to shock and haemorrhage as a result of the injury, which was sufficient to cause death in the ordinary course of nature.
6. Shafqatullah, S.H.O. (P.W.10) investigated the case. He reached the hospital on receiving the information of the occurrence and recorded the statement of Abid Mansoor complainant (Exh.
P.O.). He prepared injury statement and inquest report (Exh. P.P. And P.Q.) and sent the dead body to the mortuary for post-mortem examination. He arrested all the accused on 28-10-1987. Though weapons were recovered from them but none was blood--stained, so no sealed parcel was prepared nor any report from the Chemical Examiner/Serologist obtained.
7. At the close of the trial the appellants pleaded innocence but could not say why the case had been reported against them or the witnesses had made statements against them. Anwar appellant, however, told that he had enemies in the Chak and Razak, a relative of his enemies was running a hotel near Noori Gate. Razaq was a friend of the complainant and at his instance he had been falsely involved.
7-A. The prosecution case rests upon the eye-witness account given by Abid Mansoor, Mojeeb Aslam and Muhammad Aslam (eye-witnesses), the medical evidence provided by Dr. Naveed Asghar (P.W.2) and Investigating Officer Shafqatullali, Inspector (P.W.10).
8. Learned counsel for the appellants contended that the motive as given in the F.I.R. Was not believable, it had not been proved, in any case, it was a trivial one and that too between the complainant and Anwar appellant and the eye--witnesses were not reliable. Learned counsel for the State pointed out that it was broad-day occurrence in Sargodha town, Abid Mansoor complainant and Mojeeb Aslam were injured and they alongwith the deceased were sent to the Hospital where the matter was reported to the police without any loss of time, the presence of the witnesses at the spot was without any doubt and there being no previous enmity between them and the appellants, the charge was well brought home against the latter.
9. Abid Mansoor and Mojeeb Aslam are injured. They as well as the deceased soon reached the hospital in injured condition and were medically examined. The investigator reached the hospital and recorded the statement of the complainant. The report to the police was, therefore, prompt.
There is nothing on the record to indicate that previous to the present occurrence there was any enmity or ill-will of any sort between the appellants or the complainant and the other eye- witnesses. They are completely independent and disinterrested. However, the motive part of the story is not believable. It is deposed to by Abid Mansoor complainant. If, as is his case, he had abused and given beating to Anwar appellant, then at the time of occurrence Anwar must have been armed being the main player and not stood by just raising Lalkaras. We are inclined to agree with the learned counsel for the appellants that the motive part of the story as given by the complainant is not believable.
10. Learned counsel for the appellants further argued that in any case it seemed to be a sudden affair without any premeditation. According to him there was every probability that due to the hawkish dispositions of the complainant and the deceased and might be over the indulgence of the complainant in Jagga tax all of a sudden the affair developed. The complainant claims that he was a Fourth Year student and was to drop his cousin Hamayun Asif (deceased) at his shop. He denied that he used to charge Jagga tax at Wagon stand and was not a student. He, however, admitted that a case under section 307, P.P.C. Was registered against him. He further admitted that only two cases had been registered against him. He admitted that during the investigation he did not produce any witness about he incident between him and Anwar appellant that took place a day prior to the occurrence. Mojeeb Aslam (P.W.4) showed ignorance in cross-examination whether there were criminal cases against Abid Mansoor complainant and he was a Badmash, had come to the stand to receive Jagga tax with his helpers where there was a fight and people injured them. The medical evidence shows that only one daggar blow was given in the thigh of the deceased while the complainant was given only two blows. It seems to have been a sudden affair that is why the deceased or the complainant were not further belaboured, otherwise there seems nothing hindering the appellants from doing more damage. We, therefore, accept the contention.
10-A. There being no motive or in any case, none having been proved, the affair being without any premeditation or preconcert and only one injury having been caused to the deceased, the intention was not to commit murder. No injury is ascribed to Anwar appellant who was empty- handed. He is stated to have taken the deceased in a clasp whereafter he was given the dagger blow in the thigh by Mian Khan. This possibly could not have been done if he was clasping the deceased. His participation is not proved beyond any shadow of reasonable doubt. His appeal is accepted and granting him the benefit of doubt, he stands acquitted. He is on bail and stands discharged of the bail bonds. The appeal filed by Mian Khan is also allowed, his conviction under section 302, P.P.C. Is set aside and he stands convicted under section 304, Part 1, P.P.C. And is sentenced to 10 years' R.I. And a fine of Rs.5,000 or in default thereof one year's R.I. The tine, if realised, shall be paid to the heirs of the deceased as compensation. In view of the nature of the injury caused by him, he would not have the benefit of the provisions of section 382-B, Cr.P.C. The appeal on behalf of other appellants is dismissed except that in the circumstances, the sentences awarded to Manzoor appellant shall also run concurrently. 1n view of the nature of the injuries ascribed to them the sentence already undergone by there would suffice. They are on bail and stand discharged of the bail bonds. The appeals are disposed of accordingly and the Reference is declined. The revision petition consequently fails and is accordingly dismissed.