AUSAF ALI KHAN, J.- This judgment shall dispose of Murder Reference No. 22/90, Criminal Appeal No. 10/90 and Criminal Appeal No. 11/90 as all the tjiree arise out of the same judgment dated the 4lh of January, 1990, passed by the learned Sessions Judge, Okara, whereby he convicted all the accused and sentenced Ashraf (25), Aslam (28) to death each and Muhammad Akram (22), Muhammad Sharif alias Kaka (28), Jan Muhammad alias 'Jani (24) & Amjad (24) were awarded sentence to imprisonment for life each alongwith a fine of Rs. 5,000 each, in default thereof to undergo further R.I. For one year each, under Section 302/149 PPC. Besides, convicting all the above mentioned accused and sentencing them to one year R.J. Each with a fine of Rs. 1,000 in default thereof to undergo further R.1, for 6 months each, under section 323/149 PPC., they were also sentenneed to two years each with a fine of Rs.2,000/- each in default thereof to further undergo 6 months R.I.
Each under section 324/149, PPC. All the sentences were ordered to run concurrently. Out of the amounts of fines imposed under sections 302/149, 323/149 and 324/149, PPC., one half was ordered to be paid to the legal heirs of the deceased. Thc^accused were also sentenced under section 148, P.P.C.
2. The prosecution case as set out in FIR with little variance at the trial is that Meraj Din P.W.8 was licensed contractor of Municipal Committee, Okara, for collecting Palleydari fee for general bus stand Okara for the year 1989-90, though in fact he had associated Muhammad Amin deceased with the business partner. The fee was recovered from the labourers working within premises of general bus stand but the outsider labourers did not use to pay the fee. On1.8.1989 Muhammad Amin deceased asked Muhammad Ashraf, Muhammad Aslam and Muhammad Akram sons of Muhammad Ismail not to do the job of Palleyduri in the bus stand without payment of fee. The said accused persons did not like it and left the place threatening Muhammad Amin with consequences. On the fateful day (2.8.1989) a about 9 in the morning, Muhammad Amin was sitting in his office in the bus stand alongwith his brother Muhammad Akram complainant (P.W.11), Muhammad Yousaf (P.W.12) and Jahangir (P.W.13). The complainant when came out of his office saw the accused persons, namely Ashraf armed with dagger (Ex.P. 10) Aslam and Akram carrying Churris (Ex. P. 11 & P. 12) and Jan Muhammad, Amjad and Kaka equipped with Sotas (Exs. P. 7 to 9), present there. Ashraf accused shouted to Muhammad Amin deceased that they had come to teach him a lesson. Muhammad Amin then out of fear chained the door of the office. All the accused persons, however; dismantled the door. Muhammad Amin then ran out of the office for his life but Ashraf accused inflicted a dagger blow on the left side of his abdomen whereas Aslam accused gave Chuni blow on the right side of his abdomen. Yousaf and Jahangir P.Ws.. When tried to intervene also suffered injuries. Akram accused inflicted Churri blow on the right side of chest of Yousaf P.W. While Kaka gave Sola blow on his head. Jan Muhammad and Amjad accused dealt Sota blows to Jahangir P.W. All the accused took to their heels alongwith weapons after the offence. Besides, Akram complainant and the said injured P.Ws., Muhammad Ashraf P.W. Had also witnessed the occurrence. He, however, was given up. The complainant then took the injured to hospital where they were medically examined. The complainant had also got FIR. Ex. P.M recorded with P.S.B Division, Okara at 10.30 a.m. The statement had been recorded by Faqir Muhammad S.I.
Who then commenced the investigation.
3. The Investigating Officer rushed to the hospital where he found that the injured Muhammad Amin had expired at 11.30 a.m. Dr. Ishtiaq P.W.1 had certified the death vide Ex. P.A. The Investigating Officer as witness had rendered different stages of investigation. He had prepared injury statement (Ex. PN) inquest report (Ex. PO), recovered blood stained earth vide Ex. PD and thereafter recorded the statements of the witnesses out of whom the statement of injured witnesses Yousaf and Jahangir had recorded in the hospital. He had also got drawn up site plan Ex. P.B and Ex. P.B/1 from Abaidullah Khan, Draftsman who had prepared the same in the scale of 12 feet to an inch. He had arrested all the accused persons on 10th of August, 1989. The recoveries from the accused persons, however, had been effected on the 15th of August, 1989. Amjad, Jan Muhammad and Kaka accused had led to recoveries of Sotas which were not blood stained but the daggers P.10 to P.12, however, were blood stained and had been respectively recovered from Ahsraf, Aslam and Akram from their separate rooms of joint house on their pointations. The blood stained earth as well as the blood stained daggers after having been secured and sealed into parcels were ordered to be transmitted to the offices of Chemical Examiner and Serologist. The experts vide their reports (Ex.
PU, Ex. PU/1 and Ex. PV and Ex. PV/1) had opined those to be stained with human blood. Muhammad Nawaz (P.W. 3), Gul Nawaz (P.W.4) and Amjad Ali Muharrir (P.W. 10) had dealt with the sealed parcels.
4. Medical evidence is like this. Dr. Syed Jarrar Haider (P.W. 15) had examined Muhammad Amin in injured condition on the 2nd of August, 1989, at 9.45 a.m. And found two stab wounds on right and left side of abdomen of the injured. On the same day at 10.00 a.m. He had examined Yousaf P.W.
And found following injuries on his person:-
1. A lacerated wound 5 cm x 1 cm bone deep on the right side of the scap front part. The wound was transverscd.
2. A stab wound 4 cm x 1 cm depth not measured on the right lateral side of the chest.
The injuries after having been kept under observation were ultimately opined as simple. Injury No. 1 had been caused with blunt weapon whereas injury No. 2 was with sharp edged weapon.
5. On the same day examination at 10.15 a.m. Of Jahangir P.W. Revealed five injuries, out of which three were lacerated wounds and one was contusion, besides injured complained of pain on right knee joint but with no mark of injury.
6. On the same day at 10.30 a.m., examination of Muhammad Ashraf accused revealed the following injuries on his person:
1. Incised wound 6.5 cm x 1 cm skin deep on the left leg back transverse, lumber region and corresponding cut was present on the shirt and bunyan.
2. Contusion 5 cm x 2 cm on the left shoulder.
3. Complaint of pain on the left back upper part.
7. The autopsy of dead body of Muhammad Amin, however, was conducted by Dr. Irshad Ahmed (P.W.9) on the same day (2.8.1989) at 5.30 p.m. Doctor had found the following injuries on the body:-
1. A stitched wound 4 x 2 cm obliquely on right side of abdomen just below the right costal margin.
2. A stitched wound 4x2 cm on left side of abdomen 5 cm below the costal margin obliquely.
3. A stitched operated wound 30 x 1 cm on upper abdomen horizontally.
8. The cause of death was shock and haemorrhage due to injuries Nos. 1 and 2 which were ante- mortem and sick
9. Defence plea of the accused persons spearheaded by Ashraf accused is that on the fateful day he along with his helper Saeed had brought the luggage on his donkey carl to the general bus stand but the deceased rebuked him to go out of the bus stand to which he refused whereupon the (deceased) being armed with hatchet and his Palleydars Yousaf and Jahangir P.Ws, carrying Sotas attacked him. The deceased gave him a hatchet blow While Jahangir and Yousaf P.Ws gave Sota blows. In order to save his life the accused Ashraf picked up a Churi from the nearby fruit Rairrhi and inflicted the injuries on the deceased and Yousaf P.W. With it while his labourer Saced had dealt Sota blows to Yousaf and Jahangir P.Ws. Explaining unreasonableness of the deceased, the accused stated that the lease was confined to the labour of loading to the buses and unloading of the luggage from the buses and that the lease did not cover the labour of taking the luggage from the bus stand to the place of destination. The complainant party, however, had overreached the demand, beyond the terms of lease, and would not allow other labourers to carry the luggage and also did overcharging. All the remaining accused persons pleaded their absence at the scene of occurrence at the relevant time. Aslam and Jan Mohammad accused imputed their involvement to their civil litigation. Kaka was allegedly involved because he was siding the labourers on the issue of overcharging. Jan Mohammad ascribed his involvement to leaving his service as conductor of the bus of the complainant. Ashraf accused had also reiterated defence plea on oath under section 340, Cr. P.C.
10. It need not.Be gainsaid that when there are two versions: one set up by the prosecution and the other by the accused, then both the versions have to be read in juxtaposition with each other to examine probability or possibility of correctness of defence version. We, therefore, proceed to examine in the light of this proposition of law and keeping in view the respective contentions of the learned counsel.
11. Learned counsel for the appellants attacked the ocular account being inconsistent with the medical evidence, further let down by recovery of incriminating articles and the motive being such that if it could prompt the appellants to assault the deceased and the P.Ws., could also prompt the P.Ws, to involve'falsely in the case. All the eye-"witnesses have deposed that it was the deceased alone who used to object to the accused persons to work in the bus stand, and the preceding evening of the day of occurrence had also stopped Ashraf, Aslam and Akram accused to carry the luggage without payment of fee. It appears that the accused persons had also motive against the deceased and as per statement of the P.Ws., all the accused persons carrying weapons, mentioned supra, had come to the office of the complainant to teach the deceased, a lesson and they also attacked the deceased. But we find only two injuries on his person. Then out of the three eye-wibnesses the complainant (P.W. 11) had admitted in cross-examination that he had witnessed the attack at his brother from a distance of five yards and had not made an attempt to intervene, nor had he raised any alarm. However, he kept watching the assault throughout. It is really difficult to contemplate that real brother of the deceased was not intervening although the strangers having no blood relation (Yousaf P.W. 12, and Jahangir P.W. 13) stepped forward to help the deceased. This makes presence of the complainant at the spot doubtful. The doctor (P.W. 15) noticed three injuries out of which was an incised wound 6.5 cm x 1 cm on the left back of the accused Ashraf. No suggestion was put to the doctor that it was self-suffered. The doctor has admitted that the injured accused had arrived at the hospital at 10.00 a.m., that is when he was examining Yousaf P.W. He had come almost simultaneously with all the injured persons (the deceased and the P.Ws.). All this gives a natural touch to the plea of Ashraf accused that he had suffered injuries during fight. Not only the P.Ws, buteven the Investigating Officer had suppressed the injuries which reacts on the credibility of the entire 'prosecution version. In such a situation the view of this Court in Abdul Rahman v. The State (PLD 1959 (West Pakistan) Peshawar 74) was as follows: "When an accused person is found to have been injured in a fight with the deceased, and witnesses claiming to have seen the occurrence try to suppress this fact, it will be reasonable to presume in the absence of any plausible explanation to the contrary, that the accused person was injured by the deceased, and further when it is doubtful as to which of them attacked the other first.
12. In the present case had the attack of the accused persons been preplanned in the scenario of Jahangir (P.W. 13)'s admission that they had enmity with Ashraf accused, then the deceased would not have suffered only two injuries from six accused persons. Here, four persons were injured; the two P.Ws, besides the accused and the deceased, each suffering two to three injuries.
13. The prosecution case also does not elicit support from recoveries of incriminating articles. The learned trial Court had rightly rejected the recovery of dagger and churis (Exs. P.10 to P.12) from Ashraf, Aslam and Akram accused from their house which is also shared by three other brothers and their parents, though from separate rooms. The Investigating Officer admitted that the weapons were lying open and visible. The fact that the weapons were found with blood stains also appears to be made up in view of long gap of time between the incident and the arrest of the accused on the 10th pf August, 1989, and the recoveries on the 15th of August, 1989. The prosecution case, however, cannot be thrown out in toto. Yousaf and Jahangir P.Ws, had also suffered injuries and Ashraf accused also admits their presence at the spot and injuries caused to them, though not in a manner detailed by the prosecution. The defence plea as bolstered by Ashraf. Accused is also not believable. He had not produced the Churi before the Police which he had allegedly used in the alleged exercise of right of self-defence. And more important. Saeed, the helper of the accused who had caused injuries to Yousuf and Jahangir was also not examined in defence.
14. After survey of the evidence of the prosecution and the defence plea, we find that the truth lies in between. It is an admitted fact that the demand of the lessee (Meraj Din P.W. 8) about overcharging of fee from the labourers was challenged in a civil suit in which Aslam and Jan Mohammad appellants had also filed an application under Order, I, rule 10, C.P.C., for impleading them in the suit as is indicated by the petition (Ex.P. I6). That petition was rejected but obviously the bone of contention between the accused and the complainant party still survived. The accused till the time of occurrence have been resisting the demand of the lessee, being in violation of the terms of lease (Ex. P. 19). The facts of ths. Case seen in this background suggest a sudden fight between the parties. Here we would like to refer to the Supreme Court case reported as Nusrat and others v. Zulfiqar and others (PLD 1991 S.C. 158) where the distinction was drawn between a "free fight" and a "sudden fight". In the said case both the accused persons and the complainant party were injured, after having come across each other by chance, got involved in a fight over a quarrel and both the parties assaulted and injured each other with whatever weapons they had or could lay their hands on. The Supreme Court had ruled it a sudden fight holding: "The basic feature of a sudden fight is the initial absence of premeditation to cause death or injuries, due to the absence of time for reflection. The absence of common intention or common object is one of the distinguishing features of a sudden fight."
15. The attack of the accused persons in this case cannot be categorized as a pre-meditated being inconsistent with the medical evidence and other concomitant circumstances. The venue and manner of fight, nature of injuries to various persons suggest a sudden fight between the accused persons on the one side, and the deceased, Jahangir & Yousaf P.Ws, on the other, and most of them suffering couple of injuries eaclji. We are doubtful about the presence of Aslam at the place and participation in the attack mpinly because of the fact that the deceased had suffered only two injuries with one type of weapon and those could be caused by one person and we believe Ashraf accused that he alone caused them, In the circumstances of the case, we acquit Aslam accused giving him benefit of doubt but modify the conviction and sentences in respect of the remaining accused appellants. Ashraf accused would be liable under secton 304-1, P.P.C., for fatal sharp- edged injuries to the deceased; he is, therefore convicted and sentenced thereunder to suffer R.I.
For 10 years and to pay a fine of Rs.10,0. 00 (Rupees ten thousand only) in default whereof he shall further undergo R.I. For two years; Akram accused is convicted and sentenced under section 324, PPC, to one year R.I. For causing simple injuries to Yousaf P.W.; Kaka alias Mohammad Sharif, Jan Mohammad alias Jani and Amjad are convicted and sentenced under section 323/34, PPC, to six months R.I. Each for causing simple injuries to Jahangir and Yousaf P.Ws. All the accused shall be entitled to the benefit under section 382-B, Cr. P.C. The conviction and sentences under Ss.
302/323/324/148/149 PPC, are set aside. The Murder Reference is answered in the negative and the death sentence is NOT CONFIRMED. The appeals (Nos. 10 & 11 of 1990) stand partly accepted accordingly. Aslam be released if not wanted in any other case. Bail bonds of Jan & Amjad are discharged, having served the sentence.