Muhammad Iqbal, his brother Imdad Hussain and one Falak Sher were tried by a learned Additional Sessions Judge of Faisalabad for having allegedly committed .The murder of one Muhammad Nawaz and for having murderously assaulted Muhammad Yousaf and Mst. Fatima, P.Ws.
2. Through his judgment, dated 29-4-1989, the learned trial Judge found that the murder in question was the result of a free fight. He consequently found Imdad Hussain guilty only of an offence punishable under section 323, P.P.C. For causing simple blunt weapon injuries on the person of Yousaf P.W. And sentenced him to one year's R.I. With a fine of Rs.500 or two months' R.I. In 4efault of payment of fine. Falak Sher was convicted under section 324, P.P.C. For the injuries that he was found to have caused on the persons of Mst. Fatima Bibi and Muhammad Yousaf P.Ws. And was punished with three years' R.I. With a fine of Rs.2,000 or three months' R.I. In default of payment of the said fine.
3. Iqbal was, however, convicted under section 302, P.P.C. For having caused the murder of Muhammad Nawaz deceased and on account of the above-mentioned reason he was sentenced to imprisonment for life with a fine of Rs.10,000 or sufferance of two years' R.I. In default of payment of the said fine.
4. The entire amount of fine imposed on this charge was directed to be paid to the heirs of the deceased.
5. Imdad and Falak Sher convicts are not in appeal before me.
6. It is only Muhammad Iqbal convict who has challenged the above--mentioned conviction and sentences recorded against him through Criminal Appeal No.45-J of 1989.
7. This appeal had been filed originally from jail but subsequently Rana Abdul Hameed; Advocate was engaged by the appellant who has now represented the appellant before me in this appeal.
8. The occurrence in question which had taken place at about 7-00 a.m. On 8-8-1987 in the how of Chak No.289/R.B. Within the jurisdiction of Police Station Dijkot had been reported at the said police station by Muhammad Yousaf P.W. At 8-30 a.m. On the same day.
9. The said Muhammad Yousaf complainant had stated that his brother Nawaz deceased had been married to one Mst. Mumtaz Bibi whose brother Iqbal (the present appellant) had, in exchange for the said marriage, been married to their sister Mst. Fatima Bibi. These marriages, according to the complainant, had taken place about 12/13 years prior to the present occurrence out of which wed locks seven children had been born.
10. The complainant had further stated that about three years prior to the occurrence Mst. Mumtaz Bibi, on account of her differences with Nawaz deceased, left her matrimonial home and. Went away to her parents and in turn his sister Mst. Fatima Bibi returned to her parental home. He had further claimed that Muhammad Iqbal appellant, who was husband of his sister Mst. Fatima Bibi, divorced her about a year prior to the occurrence but Muhammad Nawaz deceased chose not to divorce Iqbal appellant's sister Mst.. Mumtaz Bibi.
11. The complainant had further alleged that Muhammad Iqbal appellant and his other relatives were persistently demanding divorce of Mst. Mumtaz Bibi from Nawaz deceased and in the same connection, on the evening preceding the day of occurrence, Muhammad Iqbal appellant alongwith his other companions had again asked Nawaz deceased for the said divorce and on refusal by-the said deceased they had gone away extending threats of dire consequences to the deceased.
12. Muhammad Yousaf complainant had submitted that on the day of occurrence, he alongwith Muhammad Nawaz and his sister Mst. Fatima Bibi had left their house to go to Faisalabad at about 7-00 a.m. And just as they had reached .The Chowk of the village which was 18/20 paces away from their house, Muhammad Iqbal appellant armed with a Dagger, Imdad convict armed with a Lathi and Falak Sher convict armed with a Chhuri reached there and after raising Lalkara, Iqbal appellant inflicted a Dagger blow on the lower part of the neck of the deceased who fell down 'on the ground on receipt of this injury which was followed- by injuries inflicted by Imdad and Falak '
Sher convicts on the persons of Yousaf and Mst. Fatima P.Ws. The complainant had further stated that in the meantime certain named persons of the village reached the spot on the alarm raised.
At which the said assailants ran away from the place of occurrence.
13. During the course of investigation the three convicts including Muhammad Iqbal appellant had been arrested on 16-8-1987 whereafter each one of them had led to the recoveries of their respective weapons of offence and one got recovered by Muhammad Iqbal appellant was a blood-stained Dagger (P.5). '
14. When confronted with the prosecution case, Muhammad Iqbal appellant pleaded that it was in fact the complainant party who bore grudge against him for having divorced the complainant's sister without any justification. He had added that on the day of occurrence he was standing in front of his house when Muhammad Yousaf P.W. And Nawaz deceased passed from there and made sarcastic remarks which led to an altercation between the two sides. He had further submitted that Muhammad Yousaf P.W. And Nawaz deceased caused injury on his head and started grappling with him and that in order to save himself, he inflicted a solitary injury on the person of Nawaz deceased who was trying to over power him. He had further claimed that the injuries received by Muhammad Yousaf P.W. Was the result of grappling which Muhammad Yousaf P.W. Had with the appellant while according to him Mst. Fatima P.W. Was never present at the place of occurrence at the relevant time and the injury found to exist on her person was the result of fabrication.
15. An examination of the defence plea in the light of the evidence available on record would demonstrate that the same is not a reasonable or probable, explanation of the occurrence in question.
16. It is on record that Muhammad Iqbal appellant had divorced the sister of Muhammad Nawaz deceased and Muhammad Yousaf P.W. About one year prior to the occurrence. This act of the appellant might well have caused some grief to the complainant party but it is on record that the complainant party had never taken any action or step to avenge this grief caused to them by Muhammad lqbal appellant in the period of one year which had elapsed between the divorce of Mst. Fatima Bibi and the day of occurrence.
17. On the contrary it is in evidence that in spite of the fact that the sister of Muhammad Nawaz deceased had returned home after being divorced by Muhammad Iqbal appellant, the said deceased was adamant on not divorcing the sister of Muhammad lqbal appellant. This was then a cause which was persistent and continuous and which is also the motive for the occurrence in question.
18. These facts relating to the background resulting in the occurrence in question, demonstrate that the complainant party had no motive to launch aggression on the appellant and in fact the situation was the other way round.
19. The dimensions and the nature of the injury found on the person of Muhammad Iqbal appellant which is a simple injury caused by blunt weapon whose dimensions are 2.7 c.m. x 1.2 c.m., rules out the possibility of the said injury having been the result of a planned aggression launched by the complainant party on him.
20. The appellant has denied the presence of Mst. Fatima Bibi at the place of occurrence at the relevant time and has even claimed that the injury received by her was the result of fabrication. Dr. Abdus Sattar (P.W.5) who had examined Mst. Fatima Bibi on the very day of occurrence at about 5- 15 p.m. Had found an incised wound on the front of left shoulder and the duration of the injury declared by him was about 10 hours. Not a single question was put to the said doctor to the effect that the injury in question was a fabrication or the same could have been self-suffered.
21. In the circumstances, the defence plea even to the extent of Mst. Fatima's absence from the place of occurrence at the relevant time or the non-- receipt of any injury by her, is not believable.
22. Consequently, it is not reasonably believable that Muhammad Nawaz deceased and Yousaf complainant who had the intention to mount an assault on Muhammad Iqbal appellant would do the same while they were accompanied by their sister.
23. Thus, the above examination of the defence plea leads me to reject the same as being unreasonable and improbable.
24. The complainant party had, according to their own showing left their house at 7-00 a.m. To go to Faisalabad. It is also not reasonably probable that Muhammad Iqbal appellant would know this plan or programme of the complainant party and would elect to waylay them at the time and place of occurrence nor could he be reasonably expected to elect to launch an aggression on Muhammad Nawaz deceased in broad daylight, in the village how and especially when the deceased was accompanied by a brother and a sister.
25. In the circumstances, the finding of the learned trial Court that the occurrence in question was not a result of a planned and premeditated attack on the part of Muhammad Iqbal appellant and his companions, is a finding, which is not open to any serious exception. The two parties reside in the close vicinity of each other and the two having encountered each other near the village Chowk, which could have generated a sudden quarrel upon a sudden fight was a possibility that could not be ruled out.
26. The appellant dealt only a solitary blow on the person of Nawaz deceased. It is in evidence that the deceased then fell injured and lay on the ground at the mercy of the appellant. He, however, never repeated the blow and did not take any undue advantage bf the helplessness of the deceased. The two companions of the deceased i.e. His brother Muhammad Yousaf P.W. And his sister Mst. Fatima Bibi P.W. Had themselves received injuries at the hands of the companions of Muhammad Iqbal appellant and could have offered no assistance to the deceased or any resistance to Muhammad Iqbal appellant.
27. In the circumstances, I find that the case of Muhammad Iqbal appellant was covered by the Fourth Exception of section 300 of Pakistan Penal Code, and the offence thus committed by him did not fall within the purview of section 302, P.P.C. And in fact fell within the purview of section 304, Part I of-the-same Code.
28. Consequently, the conviction of Muhammad Iqbal appellant recorded by the learned trial Court under section 302, P.P.C. Alongwith the sentences awarded to him on the said charge are set aside.
29. He is, however, convicted under section 304, Part I of the P.P.C. And is 8 sentenced to 8 years' R.I.
With a fine of Rs.10,000 or sufferance of two years' R.I. In default of payment of the said fine. He shall be allowed the benefit of the provisions of section 382-B, Cr.P.C. And it is further directed that the entire amount of fine imposed on Muhammad Iqbal appellant shall, on realization, be paid to the heirs of Muhammad Nawaz deceased, as compensation.
30 Criminal Appeal No.45-J of 1989 is disposed of in the above terms.