' Ashraf Masih and his brother Akbar Masih had been tried by a learned Additional Sessions Judge of Sheikhupura for the murder of one Riasat Masih. Both of them had been found guilty of the charge and after being convicted under section 302/34, P.P.C. Each one of them was sentenced to imprisonment for life with a fine of Rs,15,000 or two years' R.I. In default in addition to which each one of them was also directed to pay Rs,10,000 as compensation to the heirs of Riasat Masih deceased or to undergo six months' R.I. In default of payment of the said compensation. Both convicts had been allowed the benefit of the provisions of section 382-B, Cr.P.C.
2. Criminal Appeal No,26/J of 1990 was received from jail through which both the above-mentioned convicts have challenged their above-noticed convictions and sentences.
3. The occurrence in question had taken place on 19-9-1984 at about 6-00 p.m. On a public path in front of the house of Riasat Masih deceased in 'illage Mahniawala about 14 miles from Police Station Farooq Abad of District Sheikhupura. The said occurrence had been reported to Karamat All A.S.I. By one Ashiq Masih at about 8-00 p.m. On the same day at the bus stand of Farooq Abad More.
4. Ashiq Masih complainant had stated that on 19-9-1984 at about 6-00 p.m. His paternal-cousin Shana Masih P.W. Was standing in front of his house when Ashraf Masih and Akbar Masih appellants passed from there. He had added that Shana Masih asked Ashraf appellant as to why he had taken away their Huqqa at which Ashraf appellant replied that he had not done any such thing which then led to a quarrel between the two. The complainant had claimed that Ashraf appellant caught hold of Shana P.W. While Akbar appellant started beating him up with fist blows.
He had further claimed that on the alarm raised by Shana P.W., the complainant's brother Riasat Masih and his uncle Sadiq Masih rushed in to rescue Shana P.W. Whereupon Akbar appellant raised a Lalkara asking his brother Ashraf appellant to teach a lesson to Riasat Masih deceased for attempting to rescue Shana P.W. He had further reported that Ashraf appellant then took out a Chhuri -from the Naifa of his Shalwar and inflicted repeated blows on the person of Riasat deceased who fell down and died at the spot. The complainant had further disclosed that during the struggle, Akbar appellant had also received some injury on the right temporal region of his head.
5. During the course of investigation, both the appellants were arrested on 20-9-1984 whereafter Ashraf appellant had, on 23-9-1984, led to the recovery of a blood-stained Chhuri (P.4) from his house which was seized vide memo. Exh.P.D.
6. When confronted with the prosecution case, Ashraf appellant denied his presence at the spot and his participation in the occurrence in question. He attributed his false implication to enmity.
Akbar appellant, however, admitted his presence and pleaded that on 19-9-1984 he was going towards his house alongwith his father and just as they had reached in front of the house of Shana Masih P.W., the father of the said P.W., namely, Sadiq and his brother, namely, Ilyas alongwith his cousins Ashiq complainant and Riasat deceased, emerged from the house of Shana P.W. While they were armed with hatchets and Chhuris and launched an attack and started giving injuries to them. He had added that it was on account of the darkness that in the process, Shana P.W. And others gave injuries to Riasat deceased also, who succumbed to the said injuries at the spot. Akbar appellant had further claimed that Ashraf appellant was not present at the spot and had not participated in the occurrence in question.
7. The defence plea as offered by Akbar appellant is not reasonably plausible. He had offered no reason as to why the complainant party should have come to his house and should have mounted an attack on him and his father. It is also strange that despite being armed with hatchets and Chhuris and despite the complainant party being five in number, the only damage done on the party of Akbar appellant was a minor bruise on the temporal region of his head. It is also unbelievable that while launching the attack with hatchets and Chhuris meaning thereby that the alleged attackers were rather close to Akbar appellant party, the complainant party inflicted four sharp-edged weapon injuries on the person of their own companions who also happened to be their cousin and brother and left the place of occurrence without having done any damage to the attacked party.
8. In this view of the matter no credit can be attached to the defence version of the occurrence in question and the same is, therefore, rejected.
9. As against this, the eye-witnesses who supported the occurrence in question are although closely related to the deceased yet are independent witnesses of the occurrence in question. No ill- will or motive of the kind existed which could have prompted the complainant party to make false depositions. The prosecution version as originally given in the F.I.R. And as reiterated by the eye- witnesses at the trial even otherwise appears to be the truthful narration of the occurrence in question in which the complainant and the other eye-witnesses had truthfully stated the actual events which had led to the occurrence in question in the manner in which the same had taken place. The prosecution case thus inspires confidence.
10. Nevertheless the liability of each of the two appellants in the commission of the offence in question has engaged my attention.
11. As has been mentioned above, I have dismissed the defence version of the occurrence in question. It appears that Akbar appellant had owned his participation in the occurrence in question only to exploit and to take benefit of a minor injury which he had received on his head and to screen his real brother of the crime in question,
12. It is the prosecution's own case that the occurrence in question was not a planned or a premeditated attack but was the result of a sudden fight which had erupted at the spur of the moment. Akbar appellant was not armed and there is nothing on record to infer that he knew that his brother was carrying the Chhuri which, again according to the prosecution itself, Ashraf appellant had taken out from the Naifa of his Shalwar.
13. In the circumstances, it will be unsafe to burden Akbar appellant with any common intention in the commission of the murder in question only on account of his having allegedly asked his brother to teach a lesson to Riasat deceased.
14. Consequently, Akbar appellant appears to be entitled to the benefit of doubt. He is accordingly acquitted of the charge and resultantly the conviction and sentences recorded against him under section 302/34, P.P.C. Are set aside. He shall be set at liberty forthwith if not required to be detained in any other case.
15. As has been held above, the occurrence in question was the result of a sudden flare-up. The injury available on the person of Akbar appellant was not the type which could have established that Ashraf appellant had acted in the exercise of the right of self-defence. His case could have come within the purview of the Fourth Exception to section 300, P.P.C. But for the nature, the seats and the number of injuries that he had inflicted on, the person of Riasat deceased. I, therefore, find that Ashraf appellant was rightly convicted under section 302, P.P.C. The law and the circumstances do not warrant any interference with the sentences recorded against him.
16. The present appeal, therefore, to the extent of Ashraf appellant is dismissed but his conviction shall now be under section 302, P.P.C. And not under section 302/34, P.P.C.
17. This appeal is disposed of in the above terms as having been accepted to the extent of Akbar appellant and having been dismissed to the extent of Ashraf appellant.
18. It has already been ordered that Akbar appellant shall be set at liberty forthwith if not required to be detained in any other case and it is further directed that Ashraf appellant shall be informed of this judgment and a certified copy thereof shall be sent to him in jail.