' This criminal appeal has been filed against the judgment of the learned Additional Sessions Judge, Bahawalnagar, dated 20-12-1986, whereby the appellants were convicted and sentenced as follows:--
(1) Muhammad Idrees Imprisonment for life with under section 302, P.P.C. a fine of Rs,10,000, in default whereof to suffer further R.I. For 2 years.
' Under section 323, P.P.C. For causing simple injuries to Ghulam Nabi, P.W.
(2) Abdus Sattar ' under section 326, P.P.C. For causing grievous hurt to Ali Ahmad, P.W.
' Under section 323, P.P.C. For causing simple injuries to Mst. Shamim Akhtar, P.W.
' One year's R.I. And a fine of Rs,1,000 in default whereof to suffer R.I. For 3 months.
7 years' R.I. And a fine of Rs,5,000, in default whereof to undergo one year's R.I. Further.
' One year's R.I. And a fine of Rs,5,000, in default whereof to suffer further R.I. For 3 months.
' The sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C. Legal heirs of Javed Iqbal deceased were ordered to be paid Rs,5,000 from the fine if recovered from Muhammad Idrees appellant. Ali Ahmad P.W. Was ordered to received Rs,2,000 as compensation from the fine rcovered from Abdus Sattar appellant.
2. The co-accused were also convicted and sentenced as followss:--
(1) Abdul Majid ' under section 324, P.P.C. For causing simple sharp-edged injury to Ali Ahmad, P.W.6.
(2) Abdul Rashid ' under section 324, P.P.C.
' Under section 323, P.P.C.
(3) Muhammad Rafiq under section 323, P.P.C. On three counts for causing simple injuries with blunt weapon to Ghulam Nabi, Mst. Shamim Akhtar and Mst. Rashida, P.Ws.
' 2 years' R.I. And a fine of Rs,2,000 in default whereof to suffer further R.I. For 6 months.
' 2 years' R.I. And a fine of' Mst. Shamim Akhtar and Mst. Rashida P.Ws. Were ordered to have half out of Rs,2,000, in default whereof to suffer further R.I. For 6 months.
' One year's R.I. And a fine of Rs,1,000, in default whereof to undergo R.I. For 3 months.
' One year's R.I. On each count and a fine of Rs,1,000 on each count, in default whereof to suffer further R.I. For 3 months on each count the fine, if recovered from Abdus Sattar appellant and Muhammad Rafique, co-accused. Muhammad Idrees and Abdus Sattar appellants have filed appeal against their conviction and sentence, whereas the other convicts/co-accused Abdul Majid, Abdul Rashid and Muhammad Rafiq have not preferred any appeal against their conviction and sentence. However, the connected Criminal Revision No,21 of 1987/BWP has been filed for enhancement of sentence of the appellants and the other convicts/co-accused, cited above. The criminal revision shall also be decided by this judgment. Abdul Sattar appellant has already undergone his conviction and sentence.
3. Briefly, the prosecution case is that P.W.6 Ali Ahmad complainant on 28-6-1985 lodged F.I.R.
Exh.P.N. At Police Station Faqirwali, District Bahawalnagar at 10-15 a.m. To the effect that about 8/9 years earlier to the present occurrence, his brother Nawab Din had sold his share of land (7-1/4 Acres) to Babu alias Nawab and Allah Rakha, resident of Chak No,102/6-R. The complainant had filed pre-emption suit but the same was decided in favour of Babu alias Nawab etc. And due to that, the sons of Babu etc. Had a grievance and had stopped the complainant from passing through their land. Last year, they had cut Banna of the common Khaal of their side on which the complainant had moved an application to the Canal Department which was still pending inquiry.
About 3/4 days earlier, they had again cut the Khaal and a Punchayat was convened but the sons of Babu alias Nawab did not accept the Punchayat decision. At about 8-00 a.m. On the day of occurrence, the complainant alongwith Ghulam Nabi (P.W.9), his deceased son Javed Iqbal, his daughter Mst. Shamim Akhtar (P.W.7) and Mst. Rashida Bibi his wife (given up) were working in their land when accused Abdul Majid, Muhammad Idrees passed from their land on which P.W.9 stopped them and asked them why they were passing from the land of the complainant, on which they while abusing stated that who they were to stop them and went away. After some time, Abdul Majid, Abdur Rashid and Abdul Sattar, accused armed with Kulharis and Muhammad Idrees and Muhammad Rafiq armed with Sotas reached and raised Lalkara that they would teach a lesson for stopping them, attacked and injured Ghulam Nabi (P.W.9), Javed Iqbal deceased, Mst. Shamim Akhtar (P.W.7) and Mst. Rashida P.W. (given up) as well as P.W.6 complainant. Javed Iqbal, Ghulam Nabi, Mst. Sharnim Akhtar and Mst. Rashida Bibi were taken and left in the hospital and the complainant reached the police station and lodged F.I.R. Exh.P.N.
4. P.W.11, Sana-ul-Haq, S.H.O. Had drafted Exh.P.N. On the statement of P.W.6. Thereafter, P.W.11 proceeded to the hospital, prepared injury statements Exh.P.A./1, Exh.P.B./1, Exh.P.C./1 and Exh.P.D./1 of Javed Iqbal, Ghulam Nabi, Mst. Shamim Akhtar and Mst. Rashidan respectively. He recorded the statements of P.Ws. Except the deceased as he was unconscious. Thereafter P.W.11 proceeded to the spot, secured blood-stained earth vide memo. Exh.P.O. And prepared its sealed parcels. On 29- 6-1985, Javed Iqbal succumbed to the injuries. P.W.11 reached the hospital and prepared inquest report Exh.P.X. On 3-7-1985 P.W.11 arrested the accused who were found injured and prepared injury statements Exh.P.H./1, Exh.P.I./1, Exh.P.J./1, Exh.P.K./1 and Exh.P.G./1 of Abdur Rashid, Muhammad Idrees, Abdul Sattar, Muhammad Rafiq and Abdul Majeed respectively. He made the recoveries of the weapons of offence at the instance of the accused and after completion of investigation, had challaned the accused.
5. The accused were charged under section 148/302/149/307/323/324, P.P.C. To which they denied and claimed trial.
6. The prosecution had examined twelve P.Ws. In all to substantiate its case. The motive behind the occurrence has been furnished on record by P.W.6 All Ahmad, complainant, Mst. Shamim Akhtar P.W.7 aad Ghulam Nabi P.W.9. P.W.6 had stated in F.I.R. Exh.P.N. That Nawab Din, his brother had sold his share of land to Babu alias Nawab about which the complainant filed a suit for pre-emption which was decided 3/4 years earlier to the occurrence and on that count, sons of Babu alias Nawab nourished grudge against them. He had also stated that in the year preceding the occurrence, sons of Babu breached the brim of watercourse of their side on which the complainant filed an application before the Canal Department and as well the immediate cause of motive was that 3/4 days earlier to the occurrence, the accused had breached the brim of watercourse on which P.W.6 convened a Punchayat and the Punchayat directed the accused persons to repair the watercourse but the accused did not agree and on the day of occurrence at 8-00 a.m. While the complainant party i,e. P.Ws. 6, 7 and 9 as well as Mst. Rashidan, mother of the deceased and the deceased were working in their field when the accused Muhammad Idrees and Abdul Majeed passed from their field who were stopped by P.W.9 and they exchanged abuses and accused Abdul Majeed and Muhammad Idrees went to their village and came back after a shortwhile alongwith their co-accused and the present occurrence took place. P.Ws.7 and 9 also supported the motive aspect of the case.
7. The ocular testimony was furnished on record by P.Ws. 6, 7, 8 and 9. P.W.6 is the father of P.W.7, Mst. Shamim Akhtar and P.W.9, Ghulam Nabi. They are father, sister and brother of the deceased respectively. P.W.6 had narrated the facts mentioned by him in F.I.R. Exh.P.N. P.W.7 Mst. Shamim Akhtar and P.W.9, Ghulam Nabi supported and corroborated the statement of P.W.6. P.Ws.6, 7 and 9 were injured during the occurrence. The presence of P.Ws.6, 7 and 9 was not denied by the accused. They are all injured P.Ws and they have made consistent statements i,e. That while working in their field, accused Abdul Majeed and Muhammad Idrees passed through their field upon which Ghulam Nabi P.W.9 stopped them by saying that why they were not allowing them to pass through their land whereafter abuses were exchanged between them. Both the accused went towards their village and after some time Abdul Majeed, Abdul Sattar and Abdur Rashid accused armed with hatchet, Muhammad Idrees, and Muhammad Rafiq armed with Sotis came there and made murderous assault on P.W.6. Abdur Rashied gave hatchet blow on the head of P.W.6 while Abdul Majeed also inflicted hatchet injury on his face. Abdul Sattar accused, gave hatchet blow on his left hand whereas Muhammad Rafiq gave Soti blow on his shoulder. Muhammad Rafiq, accused also caused Soti blow on his back. Muhammad Rafiq and Muhammad Idrees gave Soti blow to Ghulam Nabi (P.W.9) which hit on his shoulder, thigh and arms. Muhammad Idrees gave Soti blow on the head of Javed, deceased who fell down and became unconscious. Muhammad Idrees and Muhammaf Rafiq also gave Soti blows to Mst. Rashidan P.W. (given up) and P.W.7 Mst.
Shamim Akhtar. Abdul Sattar and Abdur Rashid accused, gave hatchet blows to Mst. Rashidan and P.W.S. Javed Iqbal, deceased had received one hatchet injury at the hands of Muhammad Idrees, appellant P.W.9 received seven injuries with blunt weapon, all simple in nature. P.W.6 received five injuries. Injuries Nos.2, 4 and 5 were caused by sharp-edged weapon and rest by blunt weapon.
Injuries Nos.4 and 5 were grievous. P.W.7 received two injuries with blunt weapon. Mst. Rashidan P.W.
(given up) suffered three injuries, all simple in nature. Exhs.P.A., P.B., P.C., P.D. And P.E. Are the medico-legal reports of deceased Javed lqbal, P.W.9, P.W.6 and P.W.7 and Mst. Rashidan P.W.
(given up). The complainant party had received total eighteen injuries. P.Ws.6, 7, 8 and 9 are the eye-witnesses who had corroborated each other.
8. The medical aspect of the case has been furnished on record by the statement of P.W.1, Dr. Muhammad Ramzan who on 28-6-1985 at 10-15 a.m. Had medically examined Javed lqbal (deceased) and had found one injury caused within the duration of 2/4 hours with blunt weapon, kept under observation and referred him to District Headquarters Hospital. The deceased succumbed to his injury on the same day and on 29-6-1985 at 8-00 a.m. P.W. 1 had conducted the autopsy on the dead body of the deceased and had found a lacerated injury 2 x 1 c.m. x bone deep on the right side of top of head close to the mid line. Frontal bone was fractured and the fracture was communicated with the fracture of the parietal bone. The doctor had opined that death occurred due to shock and haemorrhage as a result of the injury which was sufficient to cause death in the ordinary course of nature. The injury was ante-mortem and caused by blunt weapon and was dangerous to life. The time that elapsed between the injury and death was 6 to 10 hours and that of between death and post-mortem was 16 to 20 hours.
9. P.W.1 on 28-6-1985 at 10 a.m. Had medically examined Ghulam Nabi (P.W.9) and had found seven injuries on his person caused with blunt weapon. Injuries Nos.1 to 4 were kept under observation and rest were simple. After X-ray examination, injuries Nos.1 to 4 were declared simple because there was no boni lesion seen.
' P.W.1 also medically examined Mst. Shamim Akhtar P.W.7 and had found two abrasions caused with blunt weapon and simple in nature.
' The same doctor medically examined Mst. Rashidan P.W. (given up') and had found three injuries on her person. Injury No,1 was caused by sharp-edged weapon while the remaining with blunt weapon.
' On the same day, the same doctor medically examined P.W.6, Ali Ahmad and found five injuries.
Injuries Nos.2, 4 and 5 were with sharp-edged weapon and rest with blunt weapon. Injuries Nos.4 and 5 were declared grievous as there was fracture of lower end of ulna and left radius and carpal bone of left hand, respectively. The remaining injuries were simple.
' On 4-7-1985 P.W.1 at 8-00 a.m. He medically examined the accused Abdul Majeed and found five injuries which were partly healed caused with blunt weapon. Injury No,3 was grievous as fracture of lateral end of right clevical was seen. The other injuries were simple. The duration was 5 to 7 days.
' On the same day, he medically examined Abdur Rashid, accused and found three injuries caused with blunt weapon and simple in nature.
' He also medically examined Muhammad Idrees, appellant and found six injuries caused with blunt weapon, all simple in nature caused within a duration of 5 to 7 hours.
' P.W.1 on the same day at 9-35 a.m. Medically examined Abdul Sattar, appellant and found one injury caused with blunt weapon within a duration of 5 to 7 days.
' On the same day, he also medically examined Muhammad Rafiq, accused and found one injury caused with blunt weapon and simple in nature within a duration of 5 to 7 days.
10. The appellant Muhammad Idrees alongwith his co-accused was arrested by P.W.11, S.H.O. And had led to the recovery of Soti P.3 bloodstained from his house which was secured by P.W.11 vide memo. Exh.P.Q. Attested by P.W.10 Asghar Ali and Allah Rakha P.W. (given up). On the same day, Muhammad Idrees appellant led to the recovery of blood-stained shirt P.8 and Chaddar P.9 which was secured by P.W.11 vide memo. Exh.P.V. Attested by Asghar Ali P.W. And Allah Rakha P.W. (given up).
11. The appellants when examined under section 342, Cr.P.C. Denied the prosecution case and had denied the recovery of Soti P.3, shirt P.8 and Chaddar P.9 (blood stained) and had also disowned their presence. In answer to the question why this case is against you and why the P.Ws. Have deposed against them, appellants replied as under:-- "A night earlier to the occurrence, it was our turn of water of the Khala in Killa No,18 of Square No,31 from our land. This was not liked by the complainant party as they fallaciously believed that it would affect their turn of water and that they will have to do extra work to close that breach. They had asked us not to water our lands in manner. We did not act upon their instructions and it annoyed them. On the next day, i,e. The day of occurrence, the complainant party alongwith the deceased and their women-folk came into our Killa No,18 and started abusing and fighting with us i,e. Abdur Rashid, Abdus Sattar and Abdul Majeed who were working in the fields with the agricultural implements including Vahola and Kassi etc. The male injured P.Ws. And the deceased.
Javid Iqbal gave us injuries and we, in self-defence gave them injuries. Their women-folk also joined them to get them rescued and injured us with their sticks and they also got injuries from us at that time. Rafique my co-accused was not present at the spot. The complainant party was aggressor. They were annoyed with us due to breach of Banna of watercourse by us and moreover, they kept a little bitterness against us of their losing their pre-emption suit. The P.Ws. Have deposed falsely because Javed Iqbal deceased unfortunately had died and the P.Ws. Arc also related inter se. P.W. Ismail and other had never come to the spot."
' The appellants had not made statements on oath as envisaged under section 340(2), Cr.P.C.
12. I have heard learned counsel for the appellants, the learned State counsel assisted by learned counsel for the complainant and have perused the record.
13. The motive behind the occurrence was stated by P.W.6 in F.I.R. Exh.PA. That his brother sold his share of land to Babu alias Nawab, father of the appellants about which P.W.6 filed a suit for pre- emption which was decided 3/4 years earlier to the present occurrence in favour of the accused party and on that account the appellants nourished grudge against the complainant party.
Secondly, in the year preceding the occurrence, the appellants and the other co-accused breached the brim of watercourse (Khaal) of their side about which P.W.6 filed an application in the Canal Department against them and the immediate motive was stated that 3/4 days before the occurrence the accused again broke the brim of the watercourse. P.W.6 convened a Punchayat and the Punchayat directed the accused to repair the watercourse, but they did not act upon according to decision thereof, and on the day of occurrence at 8-00 a.m. Ali Ahmad (P.W.6), Ghulam Nabi (P.W.9), Mst. Shamim Akhtar (P.W.7), Mst. Rashida P.W. (given up) sons and wife of P.W.6 respectively and Javed Iqbal deceased son of P.W.6 were working in their fields when appellant Muhammad Idrees and co-accused Abdul Majid passed through their fields. P.W.9 Ghulam Nabi stopped them, whereupon abuses were exchanged and both the accused persons i,e. Abdul Majid and Muhammad Idrees went to the village and came back duly armed after a shortwhile alongwith their co-accused and the incident took place.
14. The motive as alleged by the prosecution consisted of two parts; (i) pertaining to the past relations between the parties, and (ii) consisted of breach of brim of the watercourse by the accused. The pre-emption suit filed by P.W.6 was decided in favour of the accused party, and they had no motive to launch attack on the complainant party. Moreover, no member of the Punchayat was produced by the prosecution to state that Punchayat had been convened and the accused party was directed to repair the brim of the watercourse. The immediate motive as stated by the P.Ws. Was that on the fateful day Muhammad Idrees appellant and co-accused Abdul Majid had exchanged abuses with the complainant party when they were stopped from passing through their land and altercation had taken place between P.W.9 and accused Muhammad Idrees and Abdul Majid. The important question which requires determination is whether the accused/appellants had any occasion to pass through the land of the complainant party or not.
Site plan Exh.P.M. Shows that a sanctioned path leads from the village Abadi towards the land of the parties and there was watercourse between the lands of the complainant and the accused party. The accused persons had a direct access to their land. P.W.7 Mst. Shamim Akhtar also admitted during cross-examination that the accused came straight to their land from the road without entering into their fields. The appellants in their statements under section 342, Cr.P.C.
Admitted that one day earlier to the occurrence, they breached the Banna of watercourse of their side in Chak No,18 which was not liked by the complainant party. It is clear that the relations between the parties were not cordial. The breach of Banna was a motive behind the occurrence.
The motive is a double-edged weapon.
17. The ocular testimony on record has been furnished from the statements of P.W.6 Ali Ahmad complainant, P.W.7 Mst. Shamim Akhtar, P.W.8 Muhammad Ismail and P.W.9 Ghulam Nabi. P.Ws. 6, 7 and 9 are closely related to the deceased i,e. P.W.6 is the father. P.W.7 is the sister and P.W.9 is the brother of the deceased. P.W.8 Muhammad Ismail is also related to the deceased who stated during cross-examination that other persons were also working near the fields of the accused and the complainant party and there were 200 houses in Chak No,102 /6-R where the occurrence took place. It is pertinent to mention here that independent eye-witnesses Ghulam Muhammad and Muhammad Ali were given up by the prosecution as having been won over by the accused and Mst. Rashida, mother of the deceased was given up as being unnecessary. All the abovesaid P.Ws.
Were named as eye-witnesses by P.W.6 in the F.I.R. Exh.P.A. No independent person from the vicinity was produced by the prosecution. No doubt P.Ws. 6, 7 and 9 were injured eyewitnesses and their presence on the place of occurrence at the relevant time stands proved, but their testimony is to be scrutinized with great care. Presence of P.Ws. 6, 7 and 9 is not denied by the accused persons and they had narrated the occurrence in the manner it took place. They stated that while they were working in their fields, accused Abdul Rashid and appellant Muhammad Idrees passed through their fields and P.W.9 stopped them by saying that as they were not allowing them to pass through their land, why they were passing through their (complainant's) land, whereupon abuses were exchanged between them and both the accused went to their village and after a while Abdul Majid, Abdus Sattar, Abdul Rashid armed with hatchets and Muhammad Idrees and Muhammad Rafiq armed with Sotas reached there and launched murderous assault on P.W.6. Abdul Rashid appellant gave hatchet blow on his left hand, while appellant Muhammad Idrees inflicted Sota blow on his shoulder. Muhammad Rafique accused caused Sota blow also on the back of. P.W.6.
Muhammad Rafiq, co-accused and Muhammad Idrees appellant extended Sota blows to P.W.9, which hit on his shoulder, thigh and arms. Appellant Muhammad Idrees gave a Sota blow on the head of Javed Iqbal deceased, who fell down and became unconscious. Muhammad Idrees appellant and Muhammad Rafiq accused caused. Sota blows to Mst. Rashida P.W. (given up) and Mst. Shamim Akhtar (P.W.7). Abdul Sattar appellant and Abdul Rashid accused gave hatchet blows to Mst. Rashida P.W. (given up) and P.W.7 Mst. Shamim Akhtar. The deceased had received only one head injury attributed to appellant Muhammad Idrees. Ghulam Nabi (P.W.9) received seven injuries, all with blunt weapon, and simple in nature. P.W.6 received S injuries, out of which injuries Nos.2, 4 and 5 were with sharp-edged weapon and the rest with blunt weapon. Injuries Nos.4 and 5 were grievous including one lacerated wound by blunt weapon. Mst. Shamim Akhtar (P.W.7) received 2 simple injuries with blunt weapon, Mst. Rashidan P.W. (given up) received 3 injuries, one with sharp-edged weapon and two with blunt weapon, all simple. The complainant party received total 18 injuries, whereas the accused party had received 17 injuries in all. It is pertinent to mention here that the prosecution suppressed the injuries on the accused party. P.Ws.6, 7 and 9 categorically denied that the accused party had received injuries at their hands. The accused party raised the plea of self-defence and had stated that the complainant party was aggressor and they attacked them while they were working in their fields. The accused persons had admitted presence of all the injured P.Ws. And had raised the plea of self-defence.
18. Appellant Muhammad Idrees led to the recovery of blood-stained Sota P.3, which was secured by the I.O./S.H.O. Vide memo. Exh.P.C. He also got recovered his blood-stained clothes, shirt P.8 and Chaddar P.9 secured by the I.O. Vide memo. Exh.P.V. Attested by P.W.10 who is not related to the complainant party. The other recoveries Sota P.7, hatchet P.5 and hatchet P.6 were made at the instance of Muhammad Rafiq, Abdul Rashid and Abdul Majid accused respectively, but Sota P3 was only sent to the Chemical Examiner and Serologist alongwith P.8 and P.9 which were found stained with human blood as per reports Exhs.P.EE. And P.FF. The recovery of bloodstained Sota P.3 shirt P.8 and Chaddar P.9 at the instance of appellant Muhammad Idrees had been proved on record.
19. While placing the plea of the accused party in juxtaposition with that of the prosecution, it has been proved on record from the circumstances and the evidence appearing in the case that the complainant party and the accused party have their fields adjacent to each other with a Khaal flowing in between their lands. Both parties were working in their fields at the relevant time and something must had happened which resulted in the sudden flare-up and without premeditation in result thereof both the parties received injuries. The complainant party received 18 injuries whereas 17 injuries were received by the accused party. The eye-witnesses i,e. P.Ws.6, 7, 8 and 9 have unanimously stated about the number of injuries inflicted by each of the accused on the deceased and the P.Ws. And they also particularised and specified the injuries.
20. Medical evidence on record furnished by the statement of P.W.7 is in A consonance with the ocular testimony furnished by the statements of P.Ws.6 to 9 as well as the statements of the appellants and the co-accused.
21. It is evident from the above circumstances and the evidence appearing in the case that it was a case of free fight and each of the participants was responsible for his individual act. Appellant Muhammad Idrees had caused one injury with blunt weapon on the head of Javed Iqbal deceased, but had not repeated the same. Thus, his case falls under section 304, Part II, P.P.C. Abdul Sattar appellant had caused grievous injury to P.W.6 and he is liable under section 308, P.P.C. The conviction and sentence of appellant Abdul Sattar under section 323, P.P.C. For causing simple injuries to P.W.7 Mst. Shamim Akhtar is maintained. Co-accused Abdul Majid, Abdul Rashid and Muhammad Rafiq had not filed appeals against their conviction, but as Muhammad Rafiq co- accused was convicted under section 323, P.P.C. Also for causing simple injuries to Mst. Rashida Bibi P.W. (given up), his sentence of one year's R.I. And fine of Rs,1,000, or in default to suffer 3 months further R.I. Was not warranted by law as Mst. Rashida was not produced.
22. Pursuant to the above discussion, the sentence and conviction of the appellant Muhammad Idrees under section 302, P.P.C. Is altered to under section 304, Part II, P.P.C. The conviction and sentence of Abdul Sattar appellant is altered from section 326, P.P.C. To section 308, P.P.C. To the period already undergone. The sentence of fine imposed on the appellants is maintained alongwith the sentence in default of payment of fine. The learned counsel for the appellants has prayed for leniency in the matter of sentence. The appellants were arrested on 3-7-1985 and after conviction and sentence their sentence was suspended by this Court on 16-1-1990. The appellants remained in jail as under-trials and convicts for a period of 4 years and 6 months. I am of the view that the period already undergone by them in jail as under-trials and convicts alongwith the fine shall meet the ends of justice. The appellants are on bail, their bail bonds are discharged. .