KHALIL UR REHMAN RAMDAY, J.~ Umar Din; his five sons, namely, Ashraf, Asghar, Akram, Aslam and Arshad; his cousin and brother-in-law Zulfiqar and a sister's son of Umar Din, namely, Yousaf, were tried by a learned ASJ at Khanewal for having formed an unlawful assembly while being armed with deadly weapons; for having committed rioting; for having murdered (me Khan Mohammad in the prosecution of the common object of this unlawful assembly; for having launched a murderous assault on Mohammad Hussain (PW-9), Mohammad Hanif (PW-10), Mohammad Sharif (PW-11), Mohammad Yousaf (PW-12), Nazir Ahmad (PW-13) and Ali Mohammad son of Sher Mohammad (not produced) and for having caused simple and grievous injuries on the bodies of the said persons in furtherance of the common object of the said assembly.
2. Vide his judgment dated 14.12.1987, the learned trial Court found each one of the eight accused persons guilty under section 148 PPC but held that in respect of the murder, the murderous assault and inflictions of injuries each one of the accused persons was liable only to be the extent of the damage done by each one of them and that none was culpable for the acts of the others.
3. The convictions and the sentences consequently recorded by the learned trial Court against the said convicts were as under:-
(i) UMAR PIN: A) found guilty u/s 302 PPC for the murder of Khan Mohammad deceased and sentenced to suffer death with a fine of Rs. 25,000/- or four years R1 in default of payment of fine. Half of the amount of fine was directed to be paid to the heirs of the deceased; b) found guilty u/s 307 PPC for murderous assault on Mohammad Hussain (PW-9) and sentenced to ten years R1 with a fine of Rs. 7,000/- or to suffer one year R1 in default of payment of fine; c) found guilty u/s 323 PPC for causing simple injuries on the person of Mohammad Sharif (PW-11) and sentenced to six months R1 with a fine of Rs. 500/- or sufferance of one month R1 in default of payment of the said fine; d) convicted u/s 148 PPC and sentenced to three years R1 with a fine of Rs. 2000/- or four months R1 in default of payment of fine.
(ii) MOHAMMAD ASHRAF: a) found guilty u/s 307 PPC for murderous assault on Ali Mohammad (not produced) and sentenced to imprisonment for life with a fine of Rs. 20,000/- or to suffer three years R1 in default of payment of fine; b) found guilty u/s 307 PPC for murderous assault on Mohammad Sharif (PW-11) and sentenced to seven years R1 with a fine of Rs. 5000/- or six months R1 in default of payment of fine; c) found guilty u/s PPC for giving simple injuries to Khan Mohammad deceased and sentenced to one year R1 plus a fine of Rs. 1000/- or two months R1 in default of payment of fine. This amount of fine to be paid to the heirs of Khan Mohammad deceased; d) convicted under section 148 PPC and sentenced to three years R1 with a fine of Rs. 2000/- or four months R1 in default of payment of fine.
(iii) ASGHAR ALI: a) found guilty u/s 307 PPC for murderous assault on Yousaf (PW12) and sentenced to ten years R1 plus a fine of Rs. 10,000/- or sufferance of one and a half years R1 in default of payment of fine; b) found guilty u/s 323 PPC for injuries caused to Nazir Ahmad (PW-13) and sentenced to six months R1 with a fine of Rs. 500/- or one month R1 in default of payment of fine; c) found guilty u/s 323 PPC for injuries afflicted, on the person of Mohammad Hussain (PW-9) and sentenced to six months R1 with a fine of Rs. 500/- or one month R1 in default of payment of fine; d) convicted under section 148 PPC and sentenced to three years R1 with a fine of Rs. 2000/- or four months R1 in default of payment of fine.
(iv) MOHAMMAD AKRAM: a) found guilty u/s 325 PPC for injuries given to Nazir (PW-13) and sentenced to three years R1 plus a fine of Rs. 5000/- or six months R1 in default of payment of fine;' b) found guilty u/s 325 PPC for injuries given to Mohammad Hussain (PW-9) and sentenced to three years R1 plus a fine of Rs. 5000/- or sue months R1 in default of payment of fine; c) convicted under section 148 PPC and sentenced to three years R1 with a fine of Rs. 2000/- or four months R1 in default of payment of fine.
(v) Mohammad ASLAM: a) found guilty u/s 324 PPC for injuries caused to Ali Mohammad (not produced) and sentenced to three years R1 with a fine of Rs. 5000/- or six months R1 in default of payment of fine; b) convicted under section 148 PPC and sentenced to three years R1 with a fine of Rs. 2000/- or four months R1 in default of payment of fine.
(vi) MOHAMMAD ARSHAD: a) found guilty u/s 324 PPC for injuries caused to Mohammad Hussain (PW-9) and sentenced to three years R1 with a fine of Rs. 5000/- or six months R1 in default of payment of fine; b) convicted under section 148 PPC and sentenced to three years R1 with a fine of Rs. 2000/- or four months R1 in default of payment of fine.
(vii) ZULFIQAR: a) found guilty u/s 323 PPC for injuries inflicted on the persons of Mohammad Hussain (PW-9) and Hanif (PW-10) and sentenced to one year R1, plus a fine of Rs. 1000/- or two months R1 in default of payment on each count; b) found guilty u/s 323 PPC for injuries to Mohammad Yousaf (PW-12) and Nazir Ahmad (PW-13) and sentenced to six months R1 with a fine of Rs. 500/- or one month R1 in default of payment of fine on each count; c) convicted under section 148 PPC and sentenced to three years R1 with a fine of Rs. 2000/- or four months R1 in default of payment of fine.
(viii) MOHAMMAD YOUSAF: a) found guilty u/s 323 PPC for injuries inflicted on the person of Yousaf (PW-12) and sentenced to one year R1 with a fine of Rs. 1000/- or two months R1 in default of payment of fine; b) found guilty u/s 323 PPC for injuries caused on the persons of Mohammad Hussain (PW-9), Hanif (PW-10) and Nazir (PW-13) and sentenced to six months R1 with a fine of Rs. 500/- or one month R1 in default of payment of fine on each count; c) convicted under section 148 PPC and sentenced to three years R1 with a fine of Rs. 2000/- or four months R1 in default of payment of fine.
All the sentences of imprisonment awarded to the above-named convicts were directed to run concurrently and each one of these convicts was also allowed the benefit of the provisions of section 382-B Cr.P.C.. It was further directed that half of the amount of fine imposed in respect of the injuries caused to the surviving victims, shall be paid to these injured persons respectively.
4. Murder Reference No. 16 of 1988 seeks confirmation of the sentence of death imposed on Umar Din convict.
5. All the eight convicts above-mentioned challenge their above-noticed convictions and sentences through Crl. Appeal No. 238 of 1987.
6. Ali Mohammad complainant has filed Criminal Revision No. 3 of 1988 which seeks conviction, under section 302 PPC, of all the convicts except Umar Din and also prays for enhancement of sentences awarded to the seven convicts other than Umar Din.
7. All these matters are being disposed of together through this single judgment.
8. The inter-se relationship of all the convicts has already been noticed above. The inter-se relationship of the victims of the occurrence in question and the PWs may also be noticed.
9. Ali Mohammad complainant (PW-15) who was not injured in the occurrence in question, is a brother of Khan Mohammad deceased. Yousaf (PW12) is a son of the said deceased. Mohammad Hussain (PW-9) is MAMUNZAD of the deceased .Whereas Hanif (PW-10) and Nazir (PW-13) are the sons of the said Mohammad Hussain (PW-9). Mohammad Sharif (PW-11) is a son of a cousin of the deceased.
10. Mohammad Hanif son of Qutab Din (PW-14) is not related to the complainant party but belongs to their brotherhood.
11. Ali Mohammad son of Sher Mohammad injured (not produced) is a resident of District Toba Tek Singh and was a guest staying in the house of Mohammad Hussain (PW-9).
12. Reporting the occurrence in question at Police Station Tolumba of District Multan, which information was recorded at 11-45 pan. As FIR No. 131 dated 17.6.1985, Ali Mohammad complainant had disclosed that Mohammad Hanif (PW-10) who was a nephew of the complainant was running a KIRYANA shop in their village No. 19/9-R Umar Din convict who used to take things from him cm credit owed some money to him.
13. He had further disclosed that at about 10.00 a.m. On the day of occurrence, Umar convict had gone to the shop of Hanif (PW-10) who demanded the payment of the outstanding amount at which, the two not only exchanged hot words but even started grappling with each other and were separated by Asghar (PW-6) and others whereafter, Umar Din convict went away and the matter was subsequently patched up through a PUNCHAYAT.
14. The complainant went on to allege that at about 7-00 p.m., the same day, he and Mohammad Hussain (PW-9) were standing in front of the shop of Mohammad Hanif (PW-10) when all the eight accused persons out of whom, Asghar was armed with a GQDALA. Yousaf and Zulfiqar were armed with SOTAS and the other five were armed with hatchets, reached there and on a LALKARA raised by Umar Din convict, all the eight convicts mounted an assault and commenced the proceedings by inflicting injuries on the persons of Mohammad Hussain (PW-9). Mohammad Hanif (PW-10) came out of his shop and was also assaulted. On hearing alarm, Khan Mohammad deceased reached the spot but was belaboured by Umar Din and Ashraf convicts. In the meantime, Ali Mohammad (not produced) arrived at the spot and was subjected to injuries and subsequently the other victims, who rushed to the spot to rescue the victims, were also beaten up.
15. Khan Mohammad who had received an incised wound above his left ear and a swelling on his left eye died as a result of the said injuries.
16. The defence plea at the trial, however, was that it were Aslam, Ashraf and Asghar convicts who were way laid by the complainant party and were attacked on account of the suspected illicit relations between Aslam convict and a daughter of Mohammad Hussain (PW-9) and that it was these three, who had retaliated in their defence and had caused injuries on the persons of the complainant party and that the other five convicts, namely, Umar Din, Akram, Arshad, Zulfiqar and Yousaf were not present at the place of occurrence nor had they participated in the occurrence in question.
17. Aslam, Ashraf and Asghar convicts were medically examined on 17.6.1985 by Dr. Mohammad Tariq (PW-4).
18. He had found two lacerations on the head of Aslam convict which injuries were found to have been caused by blunt weapon and were simple in nature.
19. Ashraf convict had received five injuries on his person, out of which, the one on his head had been caused by a sharp-edged weapons whereas the others had been caused by blunt weapons.
All the five injuries were simple in nature.
20. Asghar convict had received one injury on his head with a blunt weapon which was also found to be simple in nature.
21. The learned counsel for the appellants argued that it was in fact the complainant party who had waylaid and attacked Aslam, Ashraf and Asghar appellants resulting in injuries on their persons and that these three appellants had retaliated in their defence causing injuries on the persons of the complainant party and further that the remaining five appellants, namely, Umar Din, Akram, Arshad, Zulfiqar and Yousaf had not participated in the occurrence in question nor were they present at the place of occurrence at the relevant time. He thus contended that the five appellants who were not present at the place of occurrence deserved to be acquitted on account of their non-participation in the occurrence and that Akram, Asghar and Ashraf deserved, to be let off having committed no offence in the eyes of law since they had done the damage in question in defence of their persons.
22. He canvassed, in the alternative, that the occurrence in question was the result of a sudden fight which had erupted between the parties on a public thoroughfare and that in the circumstances, the offence u/s 302 and 307 P.P.C, were not made out and that the conviction of the appellants under these offences could not be maintained.
23. The learned counsel also argued that one of the alleged injured victims of the occurrence in question, namely, Ali Muhammad son of Sher Muhammad had not been produced at the trial and consequently no one could be convicted or punished for the alleged injuries received by this injured victim.
24. He finally argued that in any case, the sentences awarded to the appellants were harsh and their severity deserved to be softened.
25. The defence plea of the occurrence in question does not inspire confidence. It is not even a reasonably presumable explanation of the said occurrence.
26. It was for the first time, during the course of their statements U/Ss 342 and 340 Cr.P.C, that Aslam, Ashraf and Asghar came up with the story that they were returning home at about 7.00/7.30 p.m. And just as they had reached near the shop of Hanif (PW-10), Muhammad Hussain, Muhammad Hanif and Sharif P.Ws, who were armed with DANGS had blocked their way; that in the meantime Khan Mohammad deceased and Ali Muhammad (not produced) armed with HATCHETS And Yousaf and Nazir P.Ws, armed with SOTAS also reached the spot whereafter Khan Muhammad deceased inflicted a hatchet blow on the head of Asghar appellant who fell down and became unconscious; that Ashraf appellant snatched the hatchet from Ali Muhammad (not produced) while Aslam appellant snatched the sota from Muhammad Hussain P.W.; that thereafter Khan Muhammad deceased gave a hatchet blow on the head of Ashraf appellant who also fell down and became unconscious. Hanif P.W. Then aimed a dang blow on Muhammad Aslam who had in the meantime clasped Khan Muhammad deceased and which blow instead of hitting Aslam appellant hit the head of Khan Muhammad deceased who also fell on the ground and that thereafter the two sides inflicted injuries on each other.
27. The appellant had further pleaded at the trial that the complainant . Party had mounted this attack on them because they suspected Aslam appellant to have developed illicit liaison with a daughter of Muhammad Hussain (PW-9).
28. In their statements U/S 342 Cr.P.C., Asghar, Aslam and Ashraf appellants had only stated that it was only Muhammad Hussain, Hanif and Sharif P.Ws, who had launched an .Attack on them. It was only in their statements U/S 340 Cr.P.C., that they mentioned the presence and participation of other P.Ws, also in the occurrence in question.
29. Likewise no mention was made of the cause which had allegedly motivated the complainant party to have launched an assault on Aslam, Ashraf and Asghar appellants and it was against only during their statements u/s 340 Cr.P.C., that they volunteered that it was on account of a suspicion nourished by the complainant party about Aslam appellant having developed illicit liaison with the daughter of Muhammad Hussain (PW-9), that the three appellants mentioned above had been attacked.
30. Asghar and Ashraf appellants had claimed that the name of the daughter of Muhammad Hussain (PW-9) with whom the complainant party suspected Aslam appellant to have developed illicit connection was Mst. Zubaida. Akram appellant submitted that the name of this daughter of Muhammad Hussain (PW-9) was Mst. Hanifan whereas Arshad and Umar Din appellants who had perhaps became wise by then, declared the name of this daughter of Muhammad Hussain (PW-9) to be Mst. Hanifan alias Mst. Zubaida.
31. Another striking feature of this part of the defence plea is that Aslam appellant who is stated to be the one on account of whose alleged relationship with daughter of Muhammad Hussain P.W., the entire occurrence had taken place, made no mention at all of any such motive. He is conspicuously absolutely, silent on this aspect of the defence plea offered by the appellants.
32. About the actual occurrence in question, the defence claim is that Aslam, Ashraf and Asghar were returning home and were unarmed and that they were waylaid by at least seven persons who were armed with dangs. Hatchets and sotas. They stated that immediately after the proceedings of the attack had been initiated, Asgher and Ashraf received a blow each on their heads at the hands of Khan Muhammad deceased and had fallen unconscious which according to the defence plea, left only Ashraf appellant in the field as against the seven armed assailants from the complainant party and that it was Ashraf appellant alone who inflicted as many as 28 injuries on the persons of these seven members of the complainant party which injuries had been caused, both by blunt and sharp-edged weapons.
33. As has been mentioned above, the explanation of the occurrence in question offered by the appellants is not convincing at all and is not even a plausible explanation of the said occurrence.
The same is, therefore, rejected.
34. Even the prosecution version does not appear to be the whole truth.
35. It is on record through a witness of the prosecution itself i.e. Dr. Muhammad Tariq (PW-4) that Aslam, Ashraf and Asghar appellants had also received two, five and one injuries respectively during the course of the occurrence in question.
36. Both the injuries received by Aslam appellant we though simple and caused by blunt weapon but were on his head. Out of the five injuries received by Ashraf appellant, two were on his head, one of which was an incised wound. He was semi-conscious. His blood pressure was low and his condition was serious. Similar was the state of Asghar appellant who had although received only one injury with a blunt weapon but the same was on his head and he was also semiconscious with low pulse and blood pressure.
37. The complainant had suppressed these injuries while narrating the occurrence in question at the police station and it was only at the trial that the P.Ws, made a mention of these injuries and stated that the same had been caused to these appellants in self-defence.
38. The prosecution had claimed that it was on account of an altercation between Hanif (PW-10) and Umar Din appellant in the morning of the day of occurrence that all the eight appellants had conspired together to take revenge of the insult offered by Hanif (PW-10) to Umar Din appellant that all of them, variously armed came to the shop of the said Hanif P.W. In the evening and having thus reached there, the appellants forgot about Hanif P.W. And instead attacked Muhammad Hussain (PW-9) who was standing at the corner of the shop of Hanif P.W. Alongwith Ali Muhammad complainant.
39. It was only after Muhammad Hussain P.W. Had allegedly fallen after receipt of ten injuries on his person and after Hanif P.W. Had come out of his shop to intervene, that the appellants suddenly remembered of the said Hanif P.W. And then started beating him up and felt contented only with simple injuries on his leg and wrist.
40. The remaining P.Ws, were allegedly injured by the appellant just as they came for intervention.
41. It was admitted by the P.Ws, that no previous enmity existed between the parties and that the occurrence in question had taken place on a common path which was used by the public at large.
It was further admitted by Hanif (PW-10) that after his alleged altercation with Umar Din appellant in the morning, they had been separated by the people and a compromise had been affected between the two.
42. The occurrence in question had been described by almost all the eyewitnesses as a fight between the parties and one of the eye-witnesses had even described the occurrence as a row.
43. In the circumstances, we feel persuaded to believe that the entire episode in question did not consist of two parts i.e. An altercation between Umar Din appellant and Hanif (PW-10) in the morning and then the actual occurrence in the evening but that the episode in question comprised only of one occurrence which took place at about 7.00/730 p.m. And that it was the altercation which took place between Umar Din appellant and Hanif (PW-10) that members of both the sides who lived nearby got attracted to the spot and then indulged in a free fight where every participant caused the damage that he could cause.
44. Consequently, we hold that each member of the assailant party was responsible only to the extent of the injuries caused by him. The provisions of section 149 P.P.C, are, therefore, not attracted.
45. We would, therefore, set-aside the conviction of the appellants recorded u/s 148 P.P.C, and the sentences awarded to each one of them therefor.
46. The fatal shot on the head of Khan Muhammad deceased has been attributed to Umar Din appellant. His conviction u/s 302 P.P.C, is, therefore, maintained.
47. However, in view of his old age which, according to him, is 77 years and according to the learned trial Court was 56 years and on account of the fact that the assault mounted by him was the result of a sudden flare-up, the death sentence awarded to him on the said charge is NOT CONFIRMED. He shall instead suffer imprisonment for life u/s 302 PPC-The fine of Rs. 25,000/- imposed on him on the said charge or sufferance of four years R.I. In default of payment of fine is in the circumstances, reduced to a fine of Rs. 10,000/- or sufferance of two years R.I. In default of payment of the said fine. It is further directed that the entire amount of fine, if realised, shall be paid to the heirs of the deceased as compensation.
48. Umar Din appellant had also inflicted an injury on the head of Muhammad Hussain (PW-9).
Therefore his conviction u/s 307 PPC is also maintained and so is maintained the imprisonment of ten years R.I. Awarded to him on the said charge. The amount of fine of Rs. 7,000/- imposed on him on this charge is however reduced to Rs.5,000/- but the imprisonment of one year R.I. Directed in default of payment of fine shall remain unaltered.
49. Umar Din appellant also caused a simple injury on the person of Sharif P.W. His conviction u/s 323 PPC recorded by the learned trial Court and the sentences awarded on the said charge are maintained.
50. Ashraf appellant was convicted u/s 307 PPC for the injury inflicted by him on the head of Sharif P.W. Who was found in a miserable condition by the doctor with low pulse and blood pressure. The conviction recorded against him u/s 307 PPC and the sentences awarded to him on this charge by the learned trial Court are maintained. So are maintained the conviction and sentences recorded against him u/s 323 PPC for inflicting simple injuries on . The person of Khan Muhammad deceased.
51. Ashraf appellant was also convicted u/s 307 P.P.C, for the injuries inflicted by him on the person of Ali Muhammad son of Sher Muhammad (not produced) and he was sentenced to imprisonment for life with a fine of Rs. 20,000/- or sufferance of three years R.I. In default of payment of this fine.
52. Placing reliance on Sher Khan's case (1991 S.C.M.R. 241), the learned counsel for the appellants had contended that no-one could be punished for the injuries caused to a person who had not appeared as a witness at the trial.
53. The facts of this Supreme Court authority are distinguishable.
54. Dr. Muhammad Tariq (PW-4) who had examined this Ali Muhammad son of Sher Muhammad (not produced) had found that as a result of the incised wound inflicted on his head which is attributed to Ashraf appellant, his brain matter was protrading out and he was in a very serious condition.
55. His was not a case of a witness having been cited as such and thereafter having been with held or given up by the prosecution. This Ali Muhammad was never mentioned in the report u/s 173 Cr.P.C, as a prosecution witness. The reason is available at page 92 of the paper-book where PW-15 had stated during his cross-examination that this .\li Muhammad had lost his balance of mind after receipt of the injuries in question. Noor Muhammad S.I./I.O. (PW- 17) had stated that he had sought permission from the Medical Officer to examine the said Ali Muhammad but this permission was with held because he had been declared unfit to make a statement. The I.O. Had further stated that even after his discharge from the hospital and in spite of the fact that the said Ali Muhammad wets alive, his statement u/s 161 Cr.P.C., had never been recorded.
56. In the circumstances, this is not a case where the injured person in question was available for production before the trial Court and was with held but this was a case where the said Ali Muhammad had been rendered incapable of making any statement.
57. His position was thus similar to that of a dead man and if a person could be convicted and sentenced for injuries caused by him on the body of a deceased person who is never available for examination at the trial, then there was no reason why a person responsible for causing injuries on the body of another person who though alive but was equally incapable of making a statement at the trial, should be spared.
58. Consequently, we hold that Ashraf appellant was rightly convicted by the learned trial Court for the injuries caused by him on the person of Ali Muhammad. We thus maintain his conviction u/s 307 PPC on this charge also and in view of the irreparable and so far irreversible damage done to this Ali Muhammad, we also find no reason to reduce the sentence of imprisonment for life awarded to Ashraf appellant on this charge.
59. Resultantly all the sentences awarded to Ashraf appellant by the learned trial Court are maintained.
60. Asghar appellant was convicted u/s 307 PPC for the injuries inflicted by him on the person of Muhammad Yousaf P.W. He was also convicted u/s 323 PPC, on two counts, for having caused injuries on the persons of Muhammad Hussain and Nazir P.Ws.
61. These convictions and sentences recorded against Asghar appellant are also maintained except that the sentence of ten years R.I. Awarded to him u/s 307 PPC is reduced to a term of seven years R.I.
62. Akram, Aslam, Arshad, Zulfiqar and Yousaf were convicted on various counts U/Ss 325,324 and 323 P.P.C.
63. They have already served out their sentences.
64. The convictions and the sentences recorded against them are also maintained.
65. All the sentences of imprisonment awarded to the appellants shall nm concurrently and each one of them shall also be allowed the benefit of the provisions of section 382-B Cr.P.C.
66. The direction of the learned trial Court regarding the payment of the amounts of fine imposed on various appellants to the injured P.Ws, is maintained.
67. Ashraf and Asghar appellants are stated to be on bail. They shall be taken into custody and shall be lodged in jail to serve the unsuffered parts of their sentences.
68. M.R.No. 16 of 1988 and CrlA. No. 238 of 1987 are disposed of in the above terms.
69. For the reasons stated above, Crl. Revision No. 3 of 1988 is dismissed.