NAZIR AHMAD BHATTI, J.--- On 23-4-1989 a small boy Muhammad Afzal, aged about 9/10 years, resident of Abadi Jhand Singhwali, Faisalabad was returning from his school to his home at 1230 hours. When he reached near the house of Muhammad Anwar, which was being repaired by appellant Nazir Ahmad, the said boy was called inside by the appellant who attempted to commit sodomy with the boy. The latter raised alarm and was rescued by Muhammad Shabbir. On reaching the home the said boy narrated the occurrence to his uncle Rana Muhammad Hussain.
The latter and his other relative Fateh Muhammad abused appellant Nazir Ahmad. The latter and his brothers Bashir Ahmad and Tanwir Ahmad came armed with daggers at the spot. Accused Bashir Ahmad gave a dagger blow to Fateh Muhammad on abdomen and accused Nazir Ahmad gave a dagger blow to Rana Muhammad Hussain on the left side chest. The latter died at the spot.
Accused Tanwir Ahmad was ordering his brothers to kill both. In the meantime Muhammad Shabbir and Muhammad Anwar also arrived at the spot and saw the occurrence. All the three accused escaped after committing the offence. The injured Fateh Muhammad was taken to the hospital by the aforesaid Muhammad Anwar whereas Ahmad Khan complainant went to the Police Station and recorded F.I.R. No.97 at 2-30 p.m.
2. All the 3 accused were arrested on 27-4-1989. On 1-5-1989 all the 3 accused respectively led the police party, while they were under police custody, and on their pointing out 2 blood-stained daggers and one other dagger were recovered by the I.O. Out of the 3 accused, accused Nazir Ahmad and accused Tanwir Ahmad were also injured. Both were examined by P.W.12 Dr. Rashid Maqbool on 2-5-1989 who found 2 stitched wounds on the head and one abrasion on the left forearm of accused Nazir Ahmad and 2 stitched wounds on the head and one lacerated wound on the back of little finger of accused Tanwir Ahmad. According to the opinion of the doctor the injuries were caused between 9 to 14 days by a blunt weapon and were simple in nature. The doctor performed autopsy on the dead body of Rana Muhammad Hussain on 24-4-1989 and found 6 abrasions on different parts of his body, one lacerated wound in the middle of the chin and one stab wound 3-1/2 c.m. x 1 c.m. On the left front of chest. The doctor gave the opinion that abrasion and laceration were caused by blunt weapon and stab wound was caused by a sharp- edged weapon and which had cut vital organs and caused death. P.W.13 Dr. Masood Iqbal Bukhari examined injured Fateh Muhammad on 23-4-1989 and found an incised wound 4 c.m. x 1.5 c.m. x D.N.P. At outer and upper side of the left thigh which was caused by a sharp weapon. The injured was operated on 29-4-1989 and he remained in the hospital up till 24-5-1989.
3. P.W.6 Fateh Muhammad, P.W.7 Ahmad Khan complainant and P.W.8 Muhammad Shabbir are eye-witnesses of the occurrence whereas P.W.9 Muhammad Afzaal is a witness about the prior incident. According to the eye--witness account the prosecution story is that accused Nazir Ahmad had first attempted to commit sodomy with Muhammad Afzaal who raised alarm which attracted P.W. Muhammad Shabbir who rescued the boy. Thereupon deceased Rana Muhammad Hussain and P.W.7 Fateh Muhammad insulted the said accused and in order to take revenge of the said insult all the 3 accused came armed with daggers and attacked the complainant party.
Accused Bashir Ahmad caused a dagger injury to P.W.6 Fateh Muhammad whereas accused Nazir Ahmad committed the murder of Rana Muhammad Hussain by giving a dagger blow on his left side chest. At the time of trial it was also admitted by the witnesses that both parties had first exchanged brickbats and had caused injuries to each other and then P.W.6 Fateh Muhammad and deceased Rana Muhammad Hussain were injured by the aforesaid accused. Although their brother accused Tanwir Ahmad had also reached the spot armed with dagger but no active role was assigned to him either in the F.I.R. Or during the trial.
4. On the contrary the defence version as disclosed in cross-examination and the statements under section 342, Cr.P.C. Was that the boy Muhammad Afzaal was interfering with the implements of work of accused Bashir Ahmad who asked him not to do so which annoyed the boy who narrated the occurrence to his elders who were also annoyed and came at the spot and started throwing brickbats upon the accused party and the latter in order to save themselves also returned brickbats and thereafter accused Nazir Ahmad gave one blow each to Fateh Muhammad and Rana Muhammad Hussain and that no active part was played by the other 2 accused Bashir Ahmad and Tanwir Ahmad.
5. On the conclusion of the trial the learned Additional Sessions Judge Faisalabad convicted accused Nazir Ahmad under section 302, P.P.C. And sentenced him to suffer death and to pay fine of Rs.10,000 or in default to further undergo rigorous imprisonment for one year. The learned trial Judge also convicted him under section 12 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and sentenced him to undergo rigorous imprisonment for 10 years, to suffer 20 stripes and also to pay fine of Rs.10,000 or in default to further undergo rigorous imprisonment for one year. Half of the fine, if realised, was to be paid as compensation to P.W.9 Muhammad Afzaal.
The learned trial Judge also convicted accused Bashir Ahmad under section 307, P.P.C. And sentenced him to undergo rigorous imprisonment for 10 years and to pay fine of Rs.5,000 or in default to further undergo rigorous imprisonment for 6 months and half of the fine, if realised, was to be paid as compensation to P.W.6 Fateh Muhammad, Accused Tanwir Ahmad was acquitted.
Convicts Nazir Ahmad and Bashir Ahmad have challenged their conviction and sentence by Criminal Appeal No.248/L of 1991. There is also Murder Reference No.9/L of 1991. The complainant has filed Criminal Revision No.135/L of 1991 for enhancement of sentence of accused Bashir Ahmad.
He has also filed Criminal Revision No.156/L of 1991 to challenge the acquittal of accused Tanwir Ahmad. Since the appeal, murder reference and both criminal revisions are connected inter se, the judgment in criminal appeal in hand will also dispose of the murder reference and both the revision petitions.
6. From the evidence of both the parties, which had come on the record, we have come to the conclusion that each of them was guilty of suppression of material facts and circumstances.
7. It is a fact that appellants Nazir Ahmad and Bashir Ahmad were also injured at the spot by brickbats thrown by the complainant party but it was not disclosed in the F.I.R. Although the eye- witnesses narrated this occurrence in their testimony. It had also come to light that the occurrence of brickbats on each other by both the parties had taken place before sharp-edged injuries were inflicted upon deceased Rana Muhammad Hussain and P.W.6 Fateh Muhammad. The latter had also received, besides one inside wound each, blunt weapon injuries. This would also confirm that there was exchange of brickbats between both the parties. The evidence recorded would also disclose that actually appellant Nazir Ahmad was insulted by the complainant party on his alleged attempt to commit sodomy with P.W.9 Muhammad Afzaal. An inference can be drawn from this circumstance that it was only appellant Nazir Ahmad who gave dagger blows to P.W.6 Fateh Muhammad and deceased Rana Muhammad Hussain. The defence version with regard to the alleged incident with P.W.9 Muhammad Afzaal is that the boy had mishandled implements of appellant Nazir Ahmad and the latter had asked him to desist from that and during that process he may have also used some strong words which hurt the boy who made a complaint to his elders.
This incident, as narrated by appellant Nazir Ahmad, appears to be genuine as it is impossible to think that the appellant could think to commit sodomy at a place which opened in the street and where any body could come any time. As such this version as narrated in prosecution evidence does not appear to have taken place in that manner.
8. After carefully going through the record we have come to the conclusion that appellant Nazir Ahmad had probably used very strong or filthy language against P.W.9 Muhammad Afzaal as he was interfering with his implements which led to the incident of brick-bating and subsequently of causing dagger blows. We also cannot totally accept the defence version as to the use of `Sathri' by appellant Nazir Ahmad because, as we were informed that although this implement is sharp in nature but it does not have a pointed edge whereas incised wound was caused by a pointed edged-weapon. We are of the confirmed opinion that the incised injuries to the deceased and P.W.6 Fateh Muhammad were caused by a sharp and pointed edged-weapon and only appellant Nazir Ahmad is responsible for causing these 2 injuries. The reason for our conclusion is that actually insult was caused to him and he had the utmost grudge to take revenge. We have not been in any way impressed by the factum that 3 daggers were produced by each of the accused.
We think that some padding in this respect was done by the I.O.
9. After taking into consideration all the aforesaid circumstances we are confirmed in our opinion that the complainant party first started throwing brickbats at the accused party and they also threw brickbats at the former and thereafter appellant Nazir Ahmad gave one incised blow each to deceased Rana Muhammad Hussain and P.W.6 Fatch Muhammad with a sharp and pointed edged-weapon. There was no premeditation of the accused party to commit the murder of any person. The incident took place all a sudden le although appellant Nazir Ahmad knew that the blow given by him may cause the death of Rana Muhammad Hussain because this blow was given with full strength and thrust as it cut many vital organs of the body of Rana Muhammad Hussain. But the incident of alleged sodomy had not occurred. It is also a fact that acquitted accused Tanwir Ahmad was not injured when he was arrested. This circumstance will show that he was not present during the occurrence. Had he also been present there he would have definitely been injured because, his other brothers were injured while he did not even receive a scratch. This circumstance would clearly establish his absence at the spot at the time of occurrence. He has been implicated without any foundation. There was also no sufficient evidence to prove that appellant Bashir Ahmad had also given any dagger blow to injured P.W.6 Fateh Muhammad.
10. Consequently, we will partly accept the appeal in hand. We will set aside the conviction and sentence of appellant Bashir Ahmad and will acquit him of the offence for which he was convicted and sentenced. He shall be set at liberty forthwith if not wanted in any other case. We will also set aside the conviction and sentence of appellant Nazir Ahmad under section 12 of the Hudood Ordinance. However, his conviction under section 302, P.P.C. Is maintained but the death sentence is converted into life imprisonment with the fine as awarded by the learned trial Court. We also answer the murder reference in the negative and also dismiss both the criminal revisions.
11. The aforesaid are reasons for our short order dated 25-2-1992.
N.H.Q./718/FSC