KHALIL-UR-REHMAN RAMDAY, J.--- Three brothers, namely, Aslam Pervaiz, Javed Iqbal and War Iqbal were tried by a learned Additional Sessions Judge of Faisalabad for having committed the murder of one Niamat Ali and for having inflicted simple injuries with sharp-edged weapons on the persons of Muhammad Azam, Muhammad Nasir and Muhammad Siddique P.Ws.
2. All three of them were found guilty of the charges through a judgment, dated 25-19-1989 of the said learned Court and having been convicted under section 302/34, P.P.C. Aslam Pervaiz was sentenced to suffer death while Javed Iqbal and Zafar Iqbal were punished with imprisonment for life. Each one of them was also sentenced to pay a fine of Rs.5,000 or to undergo one year's R.I. In default of payment of the said fine. Each one of them was also directed to pay Rs.5,000 as compensation to the heirs of the deceased or to suffer three months' R.I. In default thereof. On their conviction under section 324, P.P.C. On three counts, each one of them was punished with two years' R.I. On each count. All the sentences of imprisonment were directed to run concurrently.
3. Murder Reference No.247 of 1989 seeks confirmation of the sentence of death awarded to Aslam Pervaiz convict who together with his co-convicts challenged the above-mentioned convictions and sentences recorded against each one of them through Criminal Appeal No.853 of 1989.
4. Muhammad Azam complainant has filed Criminal Revision No.101 of 1990 and prays that Javed Iqbal and Zafar Iqbal convicts be also awarded the sentences of death under section 302, P.P.C.
5. All these three matters are being disposed together through the single judgment.
6. The occurrence in question which had taken place at 11-00 a.m. On 7-4-1989, near the house of Niamat deceased, had been reported at Police Station Dijkot at 1-00 p.m. On the same day by Muhammad Azam (P.W.9).
7. He had reported that at about 11-00 a.m. On the day of occurrence, he left his house alongwith his brother Nasir P.W. And his sister's husband Siddique P.W. For going to Faisalabad and just as the three had reached ADDA CHANDNI CHOWK, Javed Iqbal armed with HATCHET, Aslam Pervaiz armed with a SUA and Zafar lqbal armed with a CHHURI emerged there.
8. He had further alleged that Aslam Pervaiz appellant' held the complainant from his collar and inflicted two SUA blows in his abdomen and when he tried to run away after liberating himself from Aslam Pervaiz appellant, Zafar Iqbal appellant inflicted a Chhuri blow on his back. He had further claimed that in the meantime, Nasir and Siddique rushed forward whereupon, Aslam Pervaiz appellant gave two Sua blows on the upper arm of Nasir and also inflicted a Sua blow in the abdomen of Siddique.
9. The complainant had further claimed that all three of them started running towards their house but were chased by the above-said three assailants and on hearing the alarm, Niamat deceased who is the father of Azam and Nasir P.Ws. And the father-in-law of Siddique P.W., came in the street and tried to stop the accused persons at which, all three of them, attacked Niamat deceased.
Aslam Pervaiz appellant dealt a SUA blow which landed in the abdomen of Niamat deceased and repeated the blow hitting the front chest of Niamat. At the same time, Javed appellant gave a hatchet blow on the back of Niamat deceased and was followed by Zafar appellant who dealt a Chhuri blow on the left flank of the deceased. Niamat deceased allegedly fell down and was given further blows by the three accused persons whereafter, the assailants decamped from the place of occurrence.
10. The complainant had disclosed that he had been engaged to Mst. Humaira who was the sister of the three appellants but he had broken the engagement at which the said Mst. Humaira had burnt herself to death. According to the complainant, it was on account of this grievance that the three assailants had done Niamat deceased to death and had injured him, his brother and his brother-in-law.
11. The three accused persons were arrested on 17-4-1989 by Munir Ali Inspector/S.H.O. (P.W.12) whereafter each one of them, separately, led the said Investigating Officer to the recovery of their respective weapons of offence from the Baithak of the house of the appellants.
12. When confronted with this prosecution evidence, Javed Iqbal appellant had pleaded that on the .Day of occurrence, he was passing in front of the house of Niamat deceased which house was opposite to the house of Javed Iqbal; that Niamat deceased took exception to it and assaulted him with a knife causing an injury on his neck due to which he fell on the ground whereupon, the three inj6red P.Ws. Started giving him fist blows and even tried to throttle him; that on his alarm, one Khan Muhammad who was a nephew of one Mohsin Khan and one Zaigham who was a brother of the said Mohsin Khan, picked up a SUA and a knife from the shop of one Boota and caused injuries to Niamat deceased and to the P.Ws. In order to save the life of Javed lqbal and that the complainant party had thereafter got a false case registered against him and his, brothers. Javed Iqbal had claimed that his brothers Zafar Iqbal and Aslam Pervaiz were not present at the place of occurrence at the relevant time nor had they participated in the occurrence in question.
13. Zafar lqbal and Aslam Pervaiz appellants adopted the above version offered by Javed lqbal appellant.
14. Dr. Masood Ahmad (P.W.6) who had appeared to prove the injuries on the person of the three injured P.Ws. Stated that he had examined Javed Iqbal accused at about 12-05 p.m. On the day of occurrence and had found an incised wound 12 c.m. x 5 c.m. x muscle deep on the left side of his neck which he had, however, subsequently declared to be an injury, simple in nature.
15. Javed appellant had claimed that it was Niamat deceased who had opened the aggression by assaulting him with a knife which was followed by fist blows given to him by the three injured P.Ws.
After he had fallen down and thereafter the said P.Ws. Had also attempted to throttle him. He had further claimed that it was in order to save him that Khan Muhammad and Zaigham who were present near the place of occurrence, had picked up a SUA and a knife from a nearby shop and had inflicted injuries on the person of the deceased and the three P.Ws.
16. Javed appellant had got himself medically examined within one hour of the occurrence in question but no marks of any fist blows had been found on his person. Likewise, no marks were found on his person which could have indicated throttling of this appellant. Needless to say that no injury, not even an abrasion or a scratch was detected on his person which should have been caused if he had fallen on the ground after receiving the injury on his neck.
17. The nature and the dimension of the injury allegedly received by him on his neck are also such which do not support his claim of the said injury being the result of a planned attack mounted by Niamat deceased with a knife.
18. It was admitted by Muhammad Azam complainant (P.W.9) that there were two parties of Rajputs in their village i.e. One led by Mohsin Khan and the other led by Imdad Ali and that the complainant party were the supporters of Imdad Ali while the appellants party belong to Mohsin Khan party.
19. It is not necessary believable that a nephew and a brother of the said Mohsin Khan would go to the extent of killing Niamat deceased and injuring the three P.Ws. Only to save Javed Iqbal who belonged to their party, especially when nothing was brought on record to demonstrate that Mohsin Khan or his party had any personal grievance or animosity against the present complainant party.
20. It is also not believable that having lost their father and having themselves received injuries at the hands of Khan Muhammad and Zaigham; the complainant party would either be so concerned about the welfare of the above-said two factions of Rajputs of their village or would be so scared of Mohsin Khan party, despite having the support of Imdad Ali, that they would let the actual murderers go escort-free and would remain contented by naming only the present appellants, as their assailants,, when it also stands established on record that besides the break-up of engagement which was through mutual agreement, the complainant party had no ill-will or animosity against the present appellants.
21. In view of the above-noticed facts and circumstances, the defence plea does not appear to be plausible and is, accordingly rejected.
22. Having refused to believe that the injuries on the person of the deceased and on the persons of the three P.Ws. Had been caused by Khan Muhammad and Zaigham, we are led to the inference that the same had been inflicted on the said persons by the appellants party.
22. The question which now engages our attention is, whether all the three appellants had participated in the occurrence in question as claimed by the prosecution?
23. Zafar Iqbal appellant was alleged to be armed with a Chhuri at the time of occurrence. He was attributed an injury on the left flank of Niamat deceased which appears to be the injury mentioned at No.3 in the statement of Dr. Abdul Sattar (P.W.1).
24. The said injury was opined to have been caused by a sharp and pointed weapon and this opinion of the said doctor had never been questioned by the prosecution and even the dimensions of the same indicated it to be the result of a sharp pointed weapon.
25. Consequently, the only injury on the person of Namat deceased with which Zafar lqbal appellant stood burdened, did not exist on the person of the A deceased. Similar is the position of the injuries on the person of Azam complainant which were attributed to this appellant. They also appear to be injuries caused by a sharp-pointed weapon.
26. Zafar Iqbal appellant was about fourteen and a half years old at the time of occurrence and in the circumstances, the possibility of Zafar Iqbal B having been roped in only on account of his relationship with Javed and Aslam appellants, could not be ruled out.
27. We would, therefore, find it unsafe to sustain the conviction of Zafar appellant as recorded by the learned trial Court.
28. Consequently, the convictions and the sentences recorded against Zafar Iqbal appellant by the learned trial Court, are set aside. He is acquitted C of the charge levelled against him and shall be set at liberty forthwith, if not required to be detained in any other case.
29. The participation of Javed Iqbal and Aslam Pervaiz appellants in the occurrence in question is, however, not open to any doubt.
30. Nevertheless, we are not fully satisfied with the existence of the motive as alleged by the prosecution.
31. It was claimed by Azam complainant through the F.I.R. That he was the one who had broken his engagement with a sister of the appellants who had consequently burnt herself to death and that it was on account of this grievance, that the appellants had assaulted them all.
32. At the trial, however, he abandoned his claim regarding Mst. Humaira's committing suicide as a result of the breaking of this engagement. He admitted that the said engagement had broken, about three years prior to the occurrence and that the same had been terminated by the mutual agreement of both the parties and that no untowards incident had taken place between the two sides for all these years.
33. In circumstances, even if the engagement and its termination were accepted as true, the same cannot be accepted as a sufficient cause for the occurrence in question.
34. This conclusion reached by us leads us to a further inference that the occurrence in question might not have commenced in the manner alleged by the prosecution.
35. The genesis of the occurrence in question being hazy, we would not F consider it safe to confirm the sentence of death awarded to Aslam Pervaizappellant.
36. Therefore, while we maintain the conviction of Javed Iqbal and Aslam Pervaiz appellants as recorded under section 302/34, P.P.C., we would alter the sentence of death awarded to Aslam Pervaiz to a punishment of imprisonment for life.
37. The convictions and sentences recorded against these two appellants under section 324/34, P.P.C. Are maintained and so are maintained the punishments of fine imposed on the two appellants under section 302/34, P.P.C. And the direction regarding the payment of compensation to the heirs of the deceased by them.
38. All the sentences of imprisonment shall run concurrently and the two appellants shall also be allowed the benefit of the provisions of section 382-B, Cr.P.C.
39. The result is that the death sentence awarded to Aslam Pervaiz appellant is NOT CONFIRMED.
40. Zafar Iqbal appellant stands acquitted of the charges under sections 302/34 and 324/34, P.P.C.
41. Criminal Appeal No.853 of 1989 is disposed of in the above terms.
42. Murder Reference No.247 of 1989 is answered in the negative and for the reasons above noticed, Criminal Appeal No.101 of 1990 is dismissed.