KHALIL-UR-REHMAN RAMDAY, J.--- Muhammad Hanif and his two sons, namely Khalid and Zahid were tried by a learned Additional Sessions Judge at Toba Tek Singh for having caused murder of one Arif Ali and for having murderously assaulted his brother Muhammad Anwar P.W.
2. Zahid accused was acquitted of the charges of murder and attempted murder and was found guilty and convicted only under section 324, P.P.C. For having caused simple injuries to Anwar P.W.
He was consequently sentenced to three years' R.I. With a fine of Rs.20,000 or two years' R.I. In default of payment of fine. He was also allowed the benefit of the provisions of section 382-B, Cr.P.C.
3. Hanif and Khalid accused were acquitted of the charge of attempted murder but were found guilty only of the murder of Arif deceased and both having been convicted under section 302/34 of the P.P.C. Khalid was sentenced to-death with a fine of Rs.2,000 or one year's R.I. In default of payment of fine while Hanif was punished with imprisonment for life and a fine of Rs.20,000 or sufferance of two years' R.I. In default of payment of fine.
4. Murder Reference No.41 of 1990 seeks confirmation of the sentence of death imposed on Khalid convict who, together with his above-said two co---convicts, impugns the convictions and the sentences recorded above-mentioned against each one of them, through Criminal Appeal No.88.Of 1990.
5. Both these matters are being disposed of together through this single judgment.
6. The occurrence in question which had culminated in the above---noticed convictions and sentences had taken place on 27-9-1987 at about 7-00 p.m. In the Chowk near the shop of one Ashiq Ali in Chak No.416/JB which was six miles from Police Station Saddar Gojra, District Toba Tek Singh.
7. The report about this occurrence had, however, bean made to Muhammad Iqbal S.I. (P.W.13) on 29-9-1987 at about 9-30 a.m. By one Ameer Ali (P.W.4), the father of Arif deceased while the former was present at Chowk Gojra.
8. The said Ameer Ali complainant had claimed that on 27-9-1987 he was going from his house towards his tube-well after Maghrab prayers, at about 7-00 p.m., alongwith his sons, namely, Arif deceased and Anwar P.W. And just as they had reached the Chowk near the shop of Ashiq Ali, Khalid appellant armed with a hatchet, Zahid appellant armed with a of and their father Hanif appellant also armed with a Sota suddenly emerged there while raising Lalkaras.
9. He had further claimed that Khalid appellant then started abusing Arif deceased and declared that he would teach the deceased a lesson for giving abuses whereafter Khalid appellant dealt a hatchet blow on Arif deceased which landed in the left side of his head; Anwar P.W. Stepped forward but was given a hatchet blow by Khalid appellant which hit him near his right ear; that thereafter Zahid gave repeated Sota blows to Anwar P.W. Which landed on various parts of his body and that in the meantime Hanif appellant inflicted injuries on the person of Arif deceased with the Sota that he was carrying.
10. The complainant had further stated that on the alarm raised, the people of the locality collected at the spot who then rescued the abovementioned victims from the abovementioned assailants whereafter the said assailants went away.
11. Ameer Ali complainant had disclosed that a short-while before the occurrence, Arif deceased on one hand and Khalid and Zahid appellants on the other hand had exchanged abuses with each other and that it was on account of this grievance that the said three assailants had assaulted the complainant party as abovementioned.
12. Explaining the delay in reporting the occurrence in question to police, Ameer Ali complainant had stated that he had taken the two victims of the occurrence in question to Gojra-Hospital where they had been admitted and that on the next day of the occurrence, the complainant had to take Arif deceased to General Hospital at Lahore under medical advice where the said Arif died in the late hours of the night between the 28th and 29th of September, 1987 and it was on account of the complainant's having gone away to Lahore and also on account of there being no other male member in the house that the matter could not be reported to the police earlier.
13. Dr. Abdul Jabbar (P.W.12) had examined Arif Ali deceased at Civil Hospital Gojra on 27-9-1987 at about 10-30 p.m. While the deceased was still alive. The said doctor had found an incised wound on the scalp of the deceased and had found five other lacerations and abrasions on various parts of the person of the deceased. On the same day and around the same time the said doctor had also examined Anwar P.W. And had found an incised wound and three blunt weapon injuries on various parts of the said Anwar's body.
14. During his cross-examination, the said doctor admitted that he had examined Hanif appellant on 27-9-1987 at about 10-00 p.m. And had found two incised wounds on his scalp and a swelling on his left forearm. He had also admitted that around the same time he had examined Zahid appellant and had found five blunt weapon injuries, on his person. He had further admitted that at about 10-15 p.m., on the same day, he had examined one Ashiq Ali of Chak No.416-JB and had found two blunt weapon injuries on his cheek and forearm. The injuries on the bodies of these three persons were declared to have been inflicted within six hours of the examination.
15. During the course of investigation, all the three appellants had been arrested on 19-10-1987 by Muhammad Khan Inspector (P.W.11) and on their arrest Khalid appellant had produced a hatchet (P.4) while Zahid and Hanif appellants had produced Sotas (P.5 and P.6) respectively.
16. When confronted with the prosecution case under section 342, Cr.P.C. Khalid appellant denied his presence and participation in the occurrence in question.
17 Zahid appellant had, however, pleaded that in fact Arif deceased armed with a hatchet and his brothers Anwar P.W. And Safdar Ali, armed with Sotas, had attacked Zahid appellant and his father Hanif appellant in front of the house of the said appellants when Arif deceased had given a hatchet blow to Hanif appellant while Safdar had also inflicted injuries with his Sota on the person of Hanif appellant and that Anwar P.W. Had dealt Sota blows on the person of Zahid convict.
18. He had further claimed that he and his father had no weapons with them and that they, however, took pieces of the bricks from a nearby site where a mosque was under construction and inflicted injuries on the persons of Arif deceased and Anwar P.W. With the said pieces of bricks to defend themselves.
19. Zahid appellant had further claimed that one Ashiq had also been injured during the occurrence in question and that he and his father Hanif appellant had remained admitted in the Civil Hospital at Gojra from where they had been taken into custody on 29-9-1987.
20. Dr. Muhammad Asghar, a Medical Officer of Civil Hospital at Gojra was examined as D.W.1 and proved the discharge certificates relating to the discharge of Zahid and Hanif appellants from the said hospital on 3-40-1987.
21. Muhammad Sadiq Constable of Police Station Saddar Gojra had appeared at the trial as D.W.2 and had deposed that on 29-9-1987 he had been posted at the Civil Hospital, Gojra to keep guard on Zahid and Hanif appellants whom they consequently handcuffed while lying in the said hospital and where he stayed till 4-10-1987.
22. Canvassing acquittal for the three appellants, their learned counsel argued that the F.I.R. Had been lodged after a delay of more than thirty-six hours and the explanation offered for this delay was not reasonable; that the eye-witnesses had suppressed the injuries received by Zahid and Hanif appellants and the above-mentioned Ashiq Ali; that the defence explanation of the occurrence in question was reasonably probable and thus deserved to be accepted and finally that no corroboration was available with the prosecution in support of the ocular testimony and in the circumstances the appellants deserved-to be acquitted of all the charges levelled against them.
23. Adverting to the defence version, it may be noticed that the appellants have not offered any explanation as to why Arif deceased, his brother Anwar P.W. And their other brother Safdar should have launched an attack on the appellant party. In any case, if any such assault had been mounted then it is not reasonably believable that going to the house of the appellants for launching aggression, the said three members of the complainant party would be armed with only a hatchet and Sotas. The defence has also failed to offer any explanation as to why and how the above-mentioned Ashiq had been injured during the occurrence in question. They also have no explanation for not having reported the occurrence to the police if they had been assaulted in the manner that the-defence claimed.
24. In the circumstances we are led to hold that the defence explanation of the said occurrence is not the whole truth and the same, not being a reasonably true explanation of the occurrence, cannot be believed.
25. Similar appears to be the state of affairs with the prosecution.
26. It had been admitted by the eye-witnesses that one Safdar Ali who was a brother of Arif deceased, Anwar P.W. And a son of Ameer complainant and who was employed with the Army had come home on leave. It is also on record that he never accompanied the complainant to Lahore for the treatment of Arif deceased. It is again on record that Sharif P.W. Who was a maternal--- cousin of the deceased and Anwar P.W. Never went to the hospital with the said injured persons.
27. In this view of the matter, the explanation of Ameer Ali complainant that the occurrence in question could not be reported to the police as there was no male member available in his house, is not true.
28. It is on record through the prosecution's own witness i.e. Dr. Abdul Jabbar (P.W.12) that Zahid appellant and Hanif appellant and one Ashiq Ali shopkeeper had received injuries and the time of receipt of these injuries had been declared by the said doctor to be around the time of occurrence.
29: Despite this, the eye-witnesses not only omitted to mention these injuries through the F.I.R. And through their statements recorded under section 161, Cr.P.C. But they specifically suppressed and denied these injuries even at the trial.
30. It had been admitted by Muhammad Khan Inspector/S.H.O. (P.W.11) that it had come to his notice, at the instance of the appellant party, that besides the two appellants, one Ashiq shopkeeper had also received injuries at the time of occurrence. He, however, stated that he did not consider it necessary to record the statement of the said Ashiq Ali during the course of investigation.
31. The said I.O. Did not deny that the appellants had been arrested on 29-9-1987 and it did come on record through Muhammad Sadiq Constable (D.W.2) that Zahid and Hanif appellants had been arrested while they were lying admitted in the Civil Hospital at Gojra on 29-9-1987. Nothing exists on record to disbelieve the said Muhammad Sadiq Constable, In these circumstances, the prosecution claim that the three appellants had been arrested on 19-10-1987 when they had produced their respective weapons of offence, becomes a falsity.
32. It is also strange that five persons i.e. Arif deceased, Anwar P.W., Zahid appellant, Hanif appellant and one Ashiq Ali P.W. Had reached the Civil Hospital at Gojra in an injured condition out of whom one had been found in a serious condition and two out of whom i.e. Hanif and Zahid appellants had been found serious enough to warrant admission as in-door-patients and yet the police who were in the police station only a few furlongs away from the said hospital never got the wind of any of these five persons having met violence and never registered even a report at their police station regarding their injuries.
33. In the circumstances, we are constrained to hold that even the prosecution did not come to the Court with the whole truth.
34. Such a conduct on the part of the prosecution on whom lies the onus to prove the guilt of the accused persons could have led us to acquit the appellants in the present case but certain facts which appeared so strikingly proved and admitted on record have persuaded us to reconstruct the occurrence as the same emerges from these proved facts, as permitted by Ali Beopari's case PLD 1962 SC 502.
35. It has been established on record that an occurrence had taken place after Maghrab prayers on 27-9-1987 in which five persons, namely, Arif deceased, Anwar P.W. Hanif appellant, Zahid appellant and one Ashiq shopkeeper had received injuries.
36. It also stands established on record that no previous enmity or ill-will existed between the parties besides the dispute which had taken place a short---while before the occurrence in question.
37. The said dispute had been revealed by Muhammad Ashraf (P.W.3) according to whom one Qaim Din who was the father of Hanif appellant and thus a grandfather of Khalid, and Zahid appellants wanted to recite Azaan in the mosque for the Maghrab prayers but had been stopped by the Imam of the said mosque which had led to a dispute in which Arif deceased on one side and the said Qaim Din and his sons on the other side had exchanged abuses. The said P.W. Had further claimed that at the time of the said dispute besides. Khalid and Zahid appellants, a number of other persons of the village who had come to the mosque to offer prayers, were also present.
38. No serious challenge was thrown by .The defence to the testimony of this Ashraf P.W. And we have thus no hesitation in holding that it was this dispute which had occurred at the time of Maghrab prayers and which had ultimately led to the incident in question.
39. The prosecution claimed that the occurrence had taken place in the village Chwok in front of the shop of one Ashiq Ali while the defence pleaded that the occurrence had taken place in front of their house.
40. The house of the appellants which has been shown in the site plan is about 358 feet from the shop of the said Ashiq. Next to this shop has been shown a mosque which is under construction.
41. From the defence claim that they had picked up pieces of bricks from the mosque under construction and from the fact that Ashiq Ali shopkeeper had also received injuries during the occurrence in question, the conclusion is irresistible that the occurrence had taken place in front of this shop of the said Ashiq Ali and not in front of the house of the appellants.
42. It is also on record that the occurrence had taken place at about 7-00 p.m. Which would be a short-while after the Maghrab prayers during the days of the occurrence.
43. It further stands proved on record, as noticed above, that two persons of the complainant party and two persons of the appellant party had received injuries on their persons besides the unconcerned shopkeeper, namely, Ashiq Ali. It is also on record that the injuries on the bodies of the said persons had been caused by blunt and sharp-edged weapons and some of the injuries having been caused by brickbats, has not been ruled out.
44. From these injuries which stand proved on record the story which emerges is that a dispute involving the two parties had taken place in the mosque immediately before the Maghrab prayers and after the said parties had come out of the mosque they got entangled in a sudden quarrel which had errupted at the spot which led to a free-fight between the parties in which fight two members of 'the appellant party, two members of the complainant party and Ashiq, a nearby shopkeeper, had received injuries.
45. The occurrence having taken place in this manner also explains why both the parties having received injuries and having reached the hospital, never asked the police to intervene till it became inevitable for the police to step in after the death of Arif deceased.
46. The occurrence in question was thus not a planned attack mounted by the appellants on the complainant party.
47. In the circumstances, each appellant would be responsible for the damage done by him and would not be vicariously liable for the loss caused by his relatives or the members of his party.
48. Consequently, the conviction of Khalid and Hanif appellants and the resultant punishments awarded to them under section 302/34, P.P.C. Are set aside.
49. Zahid appellant was, even according to the prosecution's own story armed only with a Sota with which he had allegedly inflicted simple injuries on the person of Anwar P.W. He is thus not liable under section 324, P.P.C. Therefore, the conviction of Zahid appellant under the said charge and the punishments awarded to him therefor are also set aside.
50. This brings us to the question as to what offences, if any, were committed by each one of these three appellants.
51. As has been held by us above, each one of these three appellants shall be responsible only for his own act.
52. Hanif appellant was saddled with blunt weapon injuries to Arif deceased while Zahid appellant had been burdened with blunt weapon injuries on the person of Anwar P.W. All the injuries attributed to these two appellants were simple in nature.
53. Each one of them (Hanif appellant and Zahid appellant), is convicted under section 323, P.P.C.
And is sentenced to one year's R.I. With a fine of Rs.1,000 or sufferance of three months' S.I. In default of payment of the said fine. The fine, if recovered from Hanif appellant shall be paid to the heirs of Arif deceased while the fine imposed on Zahid appellant, if realised, shall be paid to Anwar P.W. As compensation. Both these appellants shall also be given the benefit of the provisions of section 382-B, Cr.P.C.
54. Hanif appellant is in custody while Zahid appellant is stated to be on bail. Hanif appellant shall be set at liberty forthwith if it is found that he had already undergone imprisonment of one year's R.I. And also after payment of the above-mentioned fine imposed on him or sufferance of imprisonment directed in default thereof after extending to him the benefit of the provisions of section 382-B, Cr.P.C.,
55. Zahid appellant shall be taken into custody if it is found that he has not undergone one year's imprisonment including the benefit of the provisions of section 382-B, Cr.P.C. Or for undergoing imprisonment directed in default of payment of fine, if found that the same is not paid by him, and in case it is found that he has also undergone one year's imprisonment and has paid the amount of fine or has undergone imprisonment in default of the same, he shall stand discharged from his bail/surety bonds.
56. Khalid appellant inflicted only one injury on the person of the deceased, during the course of an occurrence which had suddenly errupted on a sudden quarrel without premeditation. Although he was armed with a hatchet, he never repeated any blow on the person of the deceased who lay fallen at his mercy.
57. He is, therefore, found guilty and consequently convicted under section 304, Part I, of the P.P.C.
He shall suffer ten years' R.I. And shall pay a fine of Rs.50,000 or undergo one year's R.I. In default of payment of the said fine. The-entire amount of fine, if recovered, shall be paid to the heirs of Arif deceased.
58. Khalid appellant also inflicted an injury on the with a hatchet which injury was found to be simple. Under section 324, P.P.C. And is sentenced to one year's R.I. With a Rs.1,000 or three months'
S.I. In default of payment of fine under this charge shall, if realised, be paid to Anwar P.W.
59. Khalid appellant shall be entitled to the benefit of the provisions of section 382-B, Cr.P.C. And it is further directed that the sentence imprisonment awarded to him on the above-said charge shall run concurrently.
N.H.Q./M-446/L