This appeal arises out of the judgment, dated 7-7-1986, by which the learned Additional Sessions Judge, Gujranwala, convicting four appellants, namely, Muhammad Sabir, Liaqat Ali, Riasat Ali and Muhammad Arif, all sons of Bashir under section 302/34, P.P.C. Sentenced each of them to imprisonment for life and a fine of Rs.2,000 or in default of its .Payment to further undergo one year's R.I., for having committed the murder of their real paternal-uncle Muhammad son of Mehar Dad on 27-7-1985 in the area ox village Chah Baghwala. Each of the convict was directed to pay a compensation of Rs.5,000 to the legal heirs of the deceased or in default to further undergo one year's R.I. He also 'convicted them for causing simple injuries to Mst. Inayat Bibi P.W. And sentenced each of them to six months' R.I. And a fine of Rs.200 or in default to further undergo one month's R.I.
Both the substantive sentences were directed to run concurrently.
2. The brief facts of the case are that Muhammad (deceased) alongwith his members of family and his brother Muhammad Bashir, the father of the appellants alongwith his family members, were residing altogether at Chah Baghwala situated in the area of village Kot Hassan Khan. Tehsil Hafizabad. District Gujranwala. On 27-7-1985 at about Chahwela Mst. Inayat Bibi complainant, wife of Muhammad (deceased), happened to quarrel with Mst. Sharifan, the mother of the appellant, on some matter over the affairs of children.. Meanwhile Muhammad (deceased) came and he scolded Mst. Sharifan Bibi, the mother of the appellants, for her misbehaviour with his wife.
Thereafter he accompanied by his wife and his minor children, namely, Maieed Ali and Abid Hussain and Mst. Zatoon Bibi, went to the land under his cultivation at a distance of about nine acres from his house where he had also maintained a cattle shed. On the same day at about Peshiwela when he was present alongwith his family members near his land under the shade of a tree on the canal bank, Sabir and Liaqat appellants armed with hatchets, while Riasat Ali and Arif appellants wielding `Sotas' suddenly appeared on the scene and raising a Lalkara to avenge the insult of their mother, attacked Muhammad (deceased). Opening the attack Muhammad Sabir gave a hatchet blow on the left side of his head followed by Liaqat Ali who also gave him hatchet blow on the head. Both of them repeated one blow each. Riasat Ali gave a Sota blow on the head of the deceased and his second blow fell near the right ear. Arif appellant gave him Sota blows on other parts of his body, including the back. Mst. Inayat Bibi complainant continued to beseech and intervene the assailants but she too was attacked by Riasat,, Ali who gave him Sota blows on her right knee and foot. Muhammad (deceased), as a result of the aforesaid injuries, fell down and died instantaneously.
3. The matter was reported to the police by Mst. Inayat Bibi P.W. And a case was registered against the appellants under sections 302, 323/34,P.P.C. On the completion of the investigation, the appellants were sent up for trial to the Court of Session.
4. On the commencement of trial they were charged for the murder of their uncle in the prosecution of their common object as also for causing simple injuries with the blunt weapon to Mst. Inayat Bibi complainant. On their pleading not guilty, prosecution led evidence against them by producing as many as 13 witnesses. Out of them Liaqat Ali Revenue Patwari Halqa, Pervaiz Akhtar H.C., Kausar Ali L.H.C. And Muhammad Nawaz F.C. Were formal witnesses and their statements need no detailed discussion.
5. Dr. Muhammad Sadiq (P.W.1) had on 28-7-1985 conducted the post--mortem examination on the dead body f Muhammad a ed about 50 years and found the following injuries:
(1) An incised wound 9 x 2 c.m. Cutting through bone and meninges on left part head, antero posteriorly placed, 8-1/2 c.m away of mid line of head and 1-1/2 c.m. Above the left eyebrow outer end.
(2) Incised wound 3-1/2 x 1-1/2 c.m. Bone deep on right part head, 10 c.m. Away of mid line and 15 c.m. Above and behind right ear.
(3) Transverse incised wound 3 x 1/2 c.m. Scalp deep top head, crossing mid 11pe, in the posterior half top head.
(4) Incised wound 3 x 1/4 c.m. Scalp deep on top head in mid line 6 c.m. In front of injury No.3.
(5) Incised wound 3 x 1/4 c.m. Skin deep on right side neck 2 c.m. Back to route right ear.
(6) Incised wound 3-1/4 x 1 /4 c.m. Scalp deep on intero posteriorly based on right part head 2 c.m.
Away of mid line.
(7) Two abraded contusions each about 3 x 1-1/2 c.m. On back palm right.,
(8) Two contusions,, each about 5 x 2 c.m. On back right shoulder and upper part back chest right.
(9) Abraded contusions each about 2 x 1/2 c.m. On right elbow.
(10) Abraded contusions 5 x 2 c.m. On left calf mid third. (11) Contusion 12 x 5 c.m. On front left shoulder.
(12) Abrasion 1 x 1/4 c.m. Front left thigh about mid third.
(13) Contusion 15 x 5 c.m. On back neck whole.
6. On dissection he found meninges and brain cut and covered with clotted blood under injuries Nos.1 and 2, besides lower part of the right parietal bone fractured. In his opinion, injury No.1, which was caused by sharp --edges weapon and had resulted in shock and haemorrhage, was sufficient in the ordinary course of nature to cause death. He found injury No.2 grievous and rest of the injuries simple, all ante mortem. Out of 13 injuries listed by him, injuries,, Nos.1 to 6 were caused by a sharp-edged weapon and the rest with blunt. He proved post-mortem report (Exh. PA.)
7. Lady Dr. Bushra Awan (P.W.13) had medically examined Mst. Inayat Bibi P.W. And found a contusion with swelling on the top of foot and a contusion on the outer surface of left leg. All these injuries were declared grievous caused by a blunt weapon. She proved medico-legal report (Exh.
P.O.)
8. Mst. Inayat Bibi complainant (P W.9) and Mst. Zatoon Bibi (P.W.10) gave the eye-witness account.
Their testimony, by and large, finds reflection in the above narration of the prosecution case and might be subjected to detailed appraisal, in due coarse, where necessary.
9. Muhammad Bashir (P.W.8) had witnessed the recovery of hatchet (P.4) from Liaqat Ali appellant, hatchet (P.5) from Muhammad Sabir appellant, Dang (P.6) from Muhammad Arif appellant, and Dang (P.7) from Riasat Ali appellant when they were in police custody during the course of investigation. He deposed accordingly
10. S.I. Ghulam Rasul (P.W.12) gave the details of investigation and challaned the appellants to the Court concerned.
11. On the conclusion of the prosecution evidence, the appellants were examined under section 342, Cr.P.C. And in their respective statements they denied all the incriminating circumstances figuring against them in the prosecution evidence. They also made statement under section 340, Cr.P.C.
Muhammad Sabir appellant, however, admitting his participation in the occurrence, stated that his mother and Mst. Inayat Bibi complainant had quarrelled in the field attracting Muhammad (deceased) who caused injuries to his mother and `on her alarm he was attracted to the scene of incident and in order. To rescue his mother he fought with the deceased. According to him, he picked up the `Kassi' and caused injuries to the deceased in self-defence.
12. He produced Muhammad Tamil (D.W.1). He deposed that about 11 months ago Mst. Inayat Bibi complainant and Mst. Sharifan, the mother of the appellants, had left their `Dera' for the canal bank at 9-10 a.m. And he did not see any quarrel between them.
13. On the conclusion of the trial the appellants were convicted and sentenced in the manner aforesaid and- they came up in appeal to this Court.
14. It is argued on behalf of the appellants that on account of sudden quarrel between the ladies, Sabir appellant was attracted .To the spot when the deceased was beating his mother and she was raising alarm. According to the learned counsel, with a view to rescue his mother Sabir appellant picked up a `Kassi' and attacked the deceased causing him certain injuries. The learned counsel submits that the parties were near relations and there was no history of previous animosity between them and in these circumstances Sabir appellant at the most committed an offence punishable under section 304, P.P.C. He has pointed out that the parties being near relations have effected compromise inasmuch as Sabir appellant has undertaken to give his two daughters in marriage to the two, sons of the deceased and in these circumstances he may be acquitted alongwith his co-appellants who even otherwise did not participate in the occurrence and were falsely implicated in this case.
15. On the other hand, it is argued on behalf of the State that the presence of two kinds of injuries, some of them having been caused by a sharp --edged weapon and others with blunt weapon, indicated the presence of at least two assailants and there seems to be no substance in the defence plea of Muhammad Sabir appellant that he had single-handedly caused injuries to the deceased. According to the learned State counsel, it was a consorted attack in--the background of earlier incident taking place at the `Dera' in the morning of the day of occurrence, obviously attracting the application of section 302/34, P.P.C.
16. 1 am inclined to agree with the contention of the learned counsel for the appellants that it was a sudden affair ending in the unfortunate incident. I Muhammad (deceased), to a greater extent, invited the trouble for himself by misbehaving with his `Bhavija' by taking the side of his wife. It naturally caused A annoyance to the appellants, who being her sons, could not tolerate their Mother being insulted and humiliated in that manner. It is, therefore, a case punishable under section 304, Part II, P.P.C. So far as the question of number of the assailants is concerned, it appears that the prosecution has thrown the net too wide by involving all the four appellants who are brothers inter se iii this case. In view of the nature of the weapon used, there could be a possibility of at. Least two persons having attacked the deceased but it is not-possible to C pick up the second assailant despite Muhammad Sabir, appellant's having admitted his participation. This being so, the safer course appears to be to grant benefit of doubt to the other appellants.
17. For'' the reasons stated above, the appeal is partly accepted, the conviction and sentence of Liaqat Ali, Riasat Ali and Muhammad Arif appellants under section 302/34, P.P.C. Is set aside and they are acquitted.1 They are already on bail and stand discharged from their liability under the bail bonds. The conviction of Muhammad Sabir appellant is altered from under section 302/34, P.P.C. To the one under section 304, Part 11, P.P.C. And after setting aside his sentence under the former provisions of law, he is D sentenced to 8 years' R.I. And a fine of. Rs.5,000 or in default to further undergo one year's R.I. He shall be entitled to the benefits of section 382-B, Cr.P.C.
18. A copy of this judgment shall be sent to District Magistrate, Gujranwala, who shall cause the arrest of Muhammad Sabir appellant and send him to the prison for serving out his remaining sentence.