' This criminal appeal has been filed against the judgment dated 14-11-1991 made by Mahar Ahmad Raza, Additional Sessions Judge, Rahim Yar Khan, whereby the appellants were convicted and sentenced as follows:
(1) Under section 304, Part 11/34, P.P.C. For causing death of Ibrahim
(2) Under section 307/34, P.P.C. For murderous assault on Shamsul Haq, P.W.
(3) Under section 307, P.P.C. For murderous assault on Ikramul Haq.
(4) 7 years' R.I. Each and a fine of Rs,5,000 each, in default of payment whereof to suffer one year each.
(5) 3 years' R.I. Each and fine of Rs,2,000 each in default whereof to suffer further imprisonment for 6 months each.
' Only appellant Ashiq All was convicted and sentenced to undergo 3 years' R.I. a fine of Rs,2,000, in default whereof to suffer further imprisonment for 6 months.
' All the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C. 2/3rd of the fine was to be considered as compensation to the legal heirs of the deceased as well as to the injured P.Ws. A connected Criminal Revision No,2 of 1992 for enhancement of sentence to the appellants shall also be disposed of by this judgment.
2. The appellants alongwith Hafeez-ur-Rehman, acquitted co-accused were tried for the murder of Ibrahim deceased and murderous assault on Shamas-ul-Haq and Ikram-ul-Haq P.Ws.
3. Briefly the prosecution case is that Shamas-ul-Haq (P.W.7) on 6-8-1987 at 12-40 a.m. Submitted a written complaint Exh.P.F. Before Said Ahmad, S.H.O. (P.W.12) that he was resident of Chak No,195-P Bara, Tehsil Sadiqabad, District Rahim Yar Khan and at about 3/4 p.m was passing from in front of the house of Ameer Ali, Faqir Muhammad appellants alongwith his deceased brother Ibrahim for looking after their land when suddently Ameer Ali, Faqir Muhammad and Ashiq All accused/appellants armed with Lathis and Hafeez-ur-Rehman empty handed after making mutual consultation and in furtherance of their common intention raised Lalkara that they would teach a lesson to Ibrahim of their insult and would not spare him. Thereafter, all the accused attacked and Ameer All appellant inflicted a Lathi blow on the left parietal region, who due to the grievous injury fell with his face downward and then Faqir Muhammad appellant inflicted Lathi blows on the back side of his neck. Ashiq Ali appellant inflicted Lathi blow on the left Dola of Ibrahim deceased. Ameer All inflicted another Lathi blow on the left flank of deceased Ibrahim. P.W.7 Shamas-ul-Haq raised hue and cry and tried to save his brother, on which Faqir Muhammad appellant inflicted Lathi blow on his head and Ashiq All appellant on his right lobe and right wrist, whereas Ameer All inflicted Lathi blow to P.W.7 who in order to ward off the blow forwarded his hand and received blow on the right index finger and left palm. Ikram-ul-Haq (P.W.8) brother of the complainant after hearing the noise reached the spot with a Soti to save the complainant party, who was also given a lathi blow on the forehead by Ashiq All appellant. Ameer All and Faqir Muhammad also gave Lathi blows on the neck and other parts of the body. Due to injuries Ibrahim fell unconscious, on which Hafeez-ur-Rehman (acquitted co-accused) stated that Ibrahim had died and their plan had succeeded and they should go back to their houses, whereby all the four accused while raising Lalkara stated that if anybody would come near, he would also meet the fate as that of Ibrahim. During the scuffle Faqir Muhammad also received minor injuries while separating. During the fight Rashid Ahmed P.W. (given up) and P.W.9 Abdul Haq while witnessing the occurrence also reached the spot, but due to fear they could not step forward to separate them.
4. The motive behind was that Faqir Muhammad suspected that Ibrahim deceased had illicit relations with his niece Mst. Nasim. Many a time the accused party was told about the innocence of Ibrahim. All the four accused/ appellants due to that grievance with a hatched plan had given beating to deceased Ibrahim.
5. P.W.12 Inspector/S.H.O. Said Ahmad sent complaint Exh. PF to the police station, where on its basis F.I.R. Exh.P.F./1 was recorded by Muhammad Hanif, Naib-Moharrir (P.W.11). P.W.12 thereafter reached the hospital, prepared injuries statement of injured Ibrahim and also of Shamas-ulHaq and Ikram- ul-Haq P.Ws and Faqir Muhammad appellant, who were already admitted in the hospital.
6. The appellants alongwith the acquitted co-accused were challaned and sent up for trial. Charge under section 302/34, P.P.C. Was framed against them, to which they denied and claimed trial.
7. The prosecution examined 12 P.Ws. In all to substantiate its case. The ocular testimony on record has been furnished by the statements of P.W.7 Shamas-ul-Haq, P.W.8 Ikram-ul-Haq and P.W.9 Abdul Haq. P.W.7 and P.W.8 are injured witnesses and they are brothers of the deceased, whereas P.W.9 Abdul Haq is the paternal-uncle of the deceased. P.W.7 Shamas-ul-Haq narrated the facts mentioned by him in the complaint Exh.P.F. P.W.8 Ikram-ulHaq also an injured witness stated that on the relevant date and time he was present in his house, heard cries of P.W.7 Shamas-ul-Haq, took up his Sota and went to the spot, i,e Chowk of the Chak. When he reached the spot, he witnessed the appellants armed with Sotas whereas Hafeez-ur-Rehman, acquitted co-accused was empty handed. Ibrahim deceased was lying on the ground. They had already inflicted blows upon Shamas-ul-Haq (P.W.7) and Ibrahim deceased. When he reached over there, Ashiq All appellant inflicted a Sota blow on his forehead, Faqir Muhammad and Amir All appellants inflicted Sota blows on his neck and other parts of the body. Since Ibrahim deceased was lying unconscious, Hafeez-ur-Rehman (acquitted co-accused) raised a Lalkara that they had achieved their object and they should leave. He was also extended threats that whosoever would follow them, would be dealt with as was done with Ibrahim. The accused had already received some minor injuries and blood was oozing out from the forehead of Faqir Muhammad appellant. P.W. 8 did not know how he had received the inujury. P.W.9 Abdul Haq stated that he was at the relevant time going to his house from the street when he heard cries from near the Chapar and saw that the appellants were armed with Sotas and Hafeez-ur-Rehman, acquitted co-accused empty handed and were saying that they had to take revenge of their insult from Ibrahim deceased and they were not going to leave him alive. Amir Ali appellant infliced a Lathi blow on the left temporal region of Ibrahim deceased. As a result of the injury Ibrahim fell on the ground with his face downward. Faqir Muhammad appellant then inflicted a blow on his neck with Sota. Ashiq Ali appellant then inflicted a Sota blow on his right arm. Amir All appellant caused a second Sota blow on the left flank of Ibrahim. Thereafter, Faqir Muhammad appellant extended a Sota blow on the head of Shamas-ul-Haq, P.W. Ashiq All appellant also gave Sota blow on his right elbow and right, wrist. Amir All appellant tried to inflict a blow upon Shamas-ul-Haq, P.W. Who raised his hand to save the blow, but the same hit him on the index finger of right hand and palm of the left hand.
Meanwhile P.W.8 Ikramul Haq armed with a Sota reached the spot, who was given a Sota blow on his forehead by Ashiq All appellant. Faqir Muhammad and Amir All appellants extended Sota blows on his neck and other parts of the body. Hafeez-ur-Rehman, acquitted co-accused then cried out that Ibrahim deceased had already died and that their object had been achieved and that they should leave for their home. The accused/appellants also extended threat to the witnesses that whosoever would come near them, would be dealt with as done to Ibrahim. The motive behind the occurrence had been stated by P.W.7 Shamas-ul-Haq in his complaint Exh.P.F. As well in his statement before the trial Court, i,e. Amir All and Faqir Muhammad appellants suspected that Ibrahim deceased had illicit relations with their niece Mst. Nasim. The complainant party had given defence to the accused party, but they were not satisfied. P.W.8 Ikram-ul-Haq and P.W.9 Abdul Haq P.W.9 also stated about the motive behind the occurrence and corroborated the motive stated by P.W.7 complainant.
8. The medical aspect of the case has been furnished on record by the statement of Dr. Hafiz Nisar Ahmad, P.W.2 who on 7-8-1987 medically examined P.W.8 Ikram-ul-Haq and found the following injuries On his person:--
(1) Lacerated wound 1-1/2 inches x 1/8 inch on scalp on right side.
(2) Complains of pain on right leg.
(3) Complains of pain on left temple.
' All the injuries were simple in nature and caused by blunt weapon within 12 hours of the examination. Exh.PA. Is the correct carbon copy of the medico-legal report.
' On the same day, same doctor medically examined P.W.7 Shamas-ulHaq and observed the following injuries:--
(1) A lacerated wound on scalp top right side 1-1/2 inches into 1/2 inch into scalp deep.
(2) Contusion half inch into half inch on right elbow.
(3) Swelling on back of right wrist 1 inch x 1/2 inch.
(4) Abrasion 1/2 inch x 1/4 inch on right index finger.
' All the injuries were simple caused by blunt weapon within 12 hours of the examination. Exh. PA/2 is the correct carbon copy of the M.L.R.
' On the very day he also examined Muhammad Ibrahim and found the following injuries upon his person:--
(1) Contusion 3 inches x 1 inch on left temporal region including cheeks with swelling.
(2) Contusion half inch x half inch on left iliac wrist.
(3) Conusion 1/8 inch x 1/8 inch on right arm above lower end of humours.
(4) Contusion on back of neck.
' The patient was unconscious with B.P.90/40 pulse 100 per minute, temperature 99 degrees, X-ray for skull of both was advised. Injury No,1 was kept under observation. Rest of the injuries were simple in nature caused by blunt weapon within 12 hours of the examination.
' Muhammad Ibrahim injured expired in the hospital early in the morning on 7-8-1987. Post-mortem examination upon his dead body was conducted by the same doctor on the very day at about 9- 00 a.m. Exh.PA./4 is the Medical Legal Report. In the opinion of the doctor, the cause of death was shock and haemorrhage due to injury No,1 which was caused by blunt weapon and was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. The death occurred within 12 hours of the receipt of injuries whereas the post-mortem examination was conducted within 6 hours of the death. Exh.PA./5 is the correct carbon copy of the post-mortem examination report.
' On the same day i,e. 7-8-1987, ... Doctor P.W.2 also examined Faqir Muhammad appellant and found the following injuries upon his person:--
(1) A lacerated wound 3 inches x 1/2 inch on the top of head.
(2) Complain of pain on chest.
' Injury No,1 was kept under observation and was X-rayed on 8-8-1987, according to which no bone lesion was seen, as such both injuries were declared simple in nature caused by blunt weapon within 12 hours of the examination. Exh.PA./8 is the correctt carbon copy of the medico-legal report.
9. P.W.12 Said Ahmad, Inspector had arrested Ashiq Ali and Faqir Muhammad on 23-8-1987, whereas P.W.12 also arrested Amir All on 31-8-1987 from his Regiment at Risalpur as Amir All was serving in the Army. On 25-8-1987 Ashiq All appellant while in police custody led to the recovery of stick P.3 from his residential Kotha in the presence of witnesses, which was secured by P.W.12 vide memo Exh.PD. On the same day, Faqir Muhammad appellant while in custody led to the recovery of stick Exh.P.4 from his residential Kotha which was secured by P.W.12 vide memo Exh.P.E. Both the memos were attested by P.W.6 Hakam Ali and P.W. Umer Din (given up). Amir All appellant while in police custody led to the recovery of stick P.2 from his residential Kotha which was secured by P.W.12 vide memo Exh.P.C. Attested by Muhammad Ashraf (P.W.5) and Abdul Rehman P.W.(given up).
10. The appellants when examined under section 342, Cr.P.C. Denied the prosecution evidence against them and also the recovery of incriminating articles at their instance. Appellant Faqir Muhammad while answering a question 'why this case against you' had stated:-- "About one month prior to this incident, Shamas-ul-Haq P.W. Tried to outrage the modesty of Mst.
Naseem Bibi. He was found guilty in Punchayat 6/7 days prior to the present incident, Shamas-ul- Haq came to my shop and had ironically coughed to which I gave injuries to him and that is why Shamas-ul-Haq is annoyed with me. On the day of occurrence, I was sitting in my shop when Abdul Haq and Ikram-ulHaq empty handed and Ibrahim and Shamas-ul-Haq armed with sticks committed trespass in my shop. Abdul Haq and Ikram-ul-Haq took me out of the shop. Ibrahim inflicted stick blow on my head and Shamas-ul-Haq on my chest. I received injuries and fell unconscious. Ashiq and Amir All came to the spot with sticks and acted in self-defence."
' Appellant Amir Ali had replied in answer to the question `why this case against you', i,e.
"In this case Abdul Haq and Ikram-ul-Haq empty handed, Shamas-ulHaq and Ibrahim deceased armed with sticks came to our shop. Abdul Haq and Ikram-ul-Haq took Faqir Muhammad from the shop. Ibrahim gave a stick blow on the head of Faqir Muhammad. Shamasul-Haq gave a stick blow on the chest of Faqir Muhammad, who fell down unconscious. The deceased and the P.Ws. Also tried to attack us and we acted in right of self-defence in order to save Faqir Muhammad and ourselves apprehending a danger of life."
' Appellant Ashiq Ali in answer to a question 'why this case against you'; had replied:- "On the day of occurrence, Abdul Haq and Ikram-ul-Haq took Faqir Muhammad out of the shop.
Ibrahim and Shamas-ul-Haq gave injuries to him who fell unconscious. I and Amir Ali armed with sticks tried to save Faqir Muhammad and the P.Ws. And deceased also attacked upon us and we acted in self-defence. Hafiz-ur-Rehman was not present."
' They further stated that they were innocent. Appellant Amir Ali had produced D.W.1 Mst. Naseem Bibi and D.W.2 Habib Ullah and had tendered in defence copy of complaint Exh.D.C. And closed the defence. D.W.1 Mst. Naseem Bibi stated that she was married to one Muhammad Akram one year earlier. About four years back she used to live in Chak No,195/Bara, which was adjacent to the house of Shamas-ul-Haq (P.W.7). The wall in between her house and the house of Shamas-ul-Haq fell down, and at about mid-night when she was sleeping in her house alongwith the other family members when one person caught hold of her hand. She got up and witnessed P.W.7. She caught hold of him and raised an alarm, whereupon Faqir Muhammad Ashiq All appellants and other family members got up. Meanwhile P.W.7 Shamas-ul-Haq released himself and ran away. Abdul Ghani, father of Shamas-ul-Haq reprimanded him and gave him shoe beating and due to self- respect they did not proceed further. D.W.2 Habibullah stated that at the relevant time he was sitting at the shop of Faqir Muhammad appellant, which is situated at the Chowk of said Chak.
Shamas-ul-Haq (P.W.7) passed in front of the shop coughing ironically. Faqir Muhammad asked him that he must be ashamed because he teased their relation and then coughed in such manner.
P.W.7 stated that what they could do, at which Ashiq All appellant who was sitting over there, caught hold of him and the appellant Faqir Muhammad gave 2/3 Soti blows to P.W.7. D.W.2 intervened and got him released. P.W.7 Shamas-ul-Haq had threatened for consequences and went away.
11. I have heard the learned counsel for the appellants, the learned counsel for the State, as well as the learned counsel for the complainant and have perused the record.
12. The motive behind the occurrence has been stated by P.Ws.7, 8 and 9 i,e. P.W.7 was suspected by appellants Faqir Muhammad and Amir Ali of having illicit relations with Mst. Naseem Bibi, their niece. The motive is a double-edged weapon. It can be used either way.
13. The ocular testimony on record has been furnished by the statements of P.Ws.7, 8 and 9. P.Ws.7 and 8 are real brothers of the deceased, whereas P.W.9 is the paternal-uncle of the deceased. P.W.
Rashid Ahmad, an independent person, was given up by the prosecution. P.W.7 and P.W.8 were injured during the occurrence, and their presence especially at the spot at the relevant time was proved. The occurrence is stated to have taken place in the Chowk of the Chak and no independent witness from the vicinity has been produced to support the prosecution version. The Court has to be at guard while accepting the evidence of interested witnesses i,e. The near relations of the deceased.
14. The medical evidence on record has been furnished by P.W.2 Dr. Hafiz Nisar Ahmad, who had medically examined the deceased Ibrahim in injured condition, P.W.7 and P.W.8 as well as appellant Faqir Muhammad. P.W.2 also conducted autopsy on the dead body of the deceased.
P.W.7 in his statement Exh.P.F. On the basis of which formal F.I.R. Exh.P.F./1 was recorded stated that Faqir Muhammad appellant had also received injuries during the occurrence. Moreover, the eye- witnesses in their staterr ents before the trial Court stated that Faqir Muhammad appellant was injured during the occurrence. The medical evidence on record brought by the statement of P.W.2 is in consonance with the ocular account furnished by the statements of P.W.7, P.W.8 and P.W.9.
15. The recoveries of sticks at the instance of the appellants have no evidentiary value as P.2 to P.4 were not found stained with blood.
16. The trial Court has dealt with the case at length i,e. The lodging of F.I.R. After deliberations and preliminary investigation. The trial Court held that the F.I.R. Was lodged after deliberations and prelimination investigation. Learned counsel appearing for the appellants has drawn my attention to the relevant facts from which only result is that the F.I.R. Was lodged after preliminary investigation and deliberations. The appellants had raised the plea of false involvement from the very start that the deceased Ibrahim was given Soti blows in the exercise of the right of self- defence. Keeping in juxtaposition the case of the appellants with that of the prosecution it has been brought on the record that the appellants Faqir Muhammad and Amir All had grievance against P.W.7 as on the one hand he had trespassed the house of P.W.1 and tried to molest her daughter and outrage her chastity. It is a matter of common knowledge that the people do not dare to produce their females in the Courts to face cross-examination by the adverse party and they are never interested to meet the humiliation, if any, by the cross-examination. Appellants Faqir Muhammad and Amir All had a grievance against the complainant party as well as complainant party had also some grievance against them as P.W.7 was given Soti blows
17. The complainant party as well as the accused party had grievance against each other and suddenly without premeditation they confronted each other in the Chowk of the village. Something must had happened before the actual occurrence. Both the parties were armed with sticks only and not with deadly weapons. The deceased received injuries during the occurrence as well as the P.Ws. And appellant Faqir Muhammad. There was no intention to kill the deceased. All had happened at the spur of moment.
18. In the circumstances, no exception can be taken to the impugned judgment excepting that the conviction and sentence of the appellants under section 304, Part II, P.P.C. Is harsh which is altered to one already undergone. The conviction and sentence of the appellants under section 307/34, P.P.C. For causing injuries to Shamas-ul-Haq (P.W.7) is altered to one under section 323/34, P.P.C.
And is reduced to one year's R.I., but the sentence of fine is maintained. The sentence of appellant Ashiq All for causing injuries to Ikram-ul-Haq under section 307/34, P.P.C. Is altered to section 323, P.P.C. And is reduced to one year's R.I. The appellants are in the jail since their arrest and have undergone a period of 3-1/2 years as undertrial and convicts. The fine under section 304, Part II, P.P.C. Is reduced to Rs,1,000 each and in default of payment to suffer one month's R.I. Each. In the circumstances, I am of the view that the period already undergone by appellants in jail as undertrial and convicts shall meet the ends of justice. .