MIAN GHULAM AHMAD, J.-On conviction and sentence u/s 304-Part I, PPC, Mohammad Ikram and Mohammad Hanif have come up in appeal to this court, pleading innocence and praying for their acquittal. Alongwith five others they had been tried by Sh. Mumtaz Ali, Addl. Sessions Judge, Kasur for commission of offences under sections 302/307/148/149 PPC, the case having been registered against all of them on 26-8-83 at P.S. Sadar, Kasur, in these circumstances:-
2. Barkat Ali, as he narrated before the police, was coming from Chowk Steel Bagh towards his house, situate outside Kote Fateh Baz Khan, Kasur, and when he was nearing his house at about 7.30 a.m., he was intercepted by Hanif s/o Habib, armed with a chhuri. He made a bid to assault Barkat Ali, who made him helpless by giving him grip and snatched away the chhuri. People from the locality came and effected reconciliation between the two. Barkat Ali went home. After taking breakfast, at about 8.30 a.m., Barkat Ali, alongwith Niamat Ali, was going towards his shop, situate at the Steel Bagh crossing, and when he was about to leave the locality, he heard ah alarm, coming from the street on the rear. He with Niamat rushed to the spot, to see his son, Safdar Ali, in grip of Hanif s/o Abdul Haq. There were landing around Hanif s/o Habib, Rehmat s/o Habib and Ikram s/o Khushi Mohammad, all equipped with Chhuris, and Majeed s/o Abdul Haq, having a 'sua'
(iron borer) in hand. They all caused injuries to Safdar Ali, with their respective weapons. In the meantime, Barkat Ali's second son, Shaukat Ali came there. He was held from behind by Hayat s/o Khair Din and he was assaulted by Rehmat s/o Habib with a chhuri. Shaukat was hit on his left arm, chest and belly. Safdar Ali had a fall on the ground; and in that condition he was again caused injuries by Hanif s/o Habib and Ikram with their 'Chhuris'. The occurrence was witnessed by Nazir r/o Road Kote and Mahmood Ahmad of Kote Rukandin, besides Barkat Ali and Niamat Ali. Safdar Ali succumbed to the injuries at the spot.
3. About 9/10 years before the occurrence, Asghar, brother of Ikram accused has abducted away Barkat Ali's sister and afterwards her restoration had been secured through a 'panchayat' by Barkat Ali. Bitterness between the parties persisted since then; and against that background murderous assault was made by the accused persons on Barkat Ali's sons, Safdar Ali and Shaukat Ali. In the course of the occurrence, some of the accused persons also sustained certain injuries. Barkat Air was going towards the police station; but on way he came across Saleem Khan SI, who recorded his statement Ex.PA, at 8.40 a.m. On the basis of Ex.PA, formal FIR Ex.PA/1 was drafted at . 9.15 a.m. By MHC Mohammad Riaz. Mohammad Saleem Khan Sub Inspector investigated the case and concluded it by taking necessary steps details of which I need not narrate here, as the same form part of the record of evidence. Ikram, Majeed, Hanif s/o Habib, Hanif s/o Abdul Haq and Mohammad Hayat accused were arrested on 28-8-83 and Rehmat accused was arrested on 1-9-
83. Arrest of Mohammad Latif alias Ban accused was effected on 30-10-83, They all led to recovery of their respective crime weapons. All the accused on being found to be at fault were challaned.
4. Mohammad Hanif s/o Abdul Haq, Mohammad Hanif s/o Habib, Mohammad Hayat, Mohammad Majeed and Rehmat Ali accused denied their presence at the spot and participation in the occurrence, although Mohammad Ikram and Latif accused conceded having been present on the occasion, maintaining that they had actually been made victim of aggression by the members of the complainant party, adding that had they not been rescued by each other, they would have been murdered by Safdar deceased, Shaukat injured PW, and Manzoor PW. According to the accused, the PWs all are inter-related and are outsiders, not being of the locality, and being interested persons they had joined hands with Barkat Ali complainant, and falsely implicated them in this case, although they had not seen the incident. It was submitted by the accused that the crime weapons, claimed to have been recovered by the police, had actually been planted on them. Latif, Ikram and Rehmat accused had also received injuries in the .: use of the occurrence and had been medically examined.
5. Barkat Ali, Niamat Ali and Shaukat Ali have furnished ocular account of the occurrence, appearing as PWs.4,5&6. Barkat Ali and Niamat Ali, according to the accused, were not present at the place of occurrence and were introduced later. Rehmat accused had been injured in the initial morning incident and had been admitted in the D.H.Q. Hospital Kasur at 8 a.m., when, he had been examined by Dr .Capt. Mohammad Anwar, PW.8. Dr. Saeed Ahmad, who was examined as a defence witness, had medically examined Mohammad Latif accused on 31-10-83, following his arrest made on 30-10-83. Mohammad Ikram accused had been medically examined on 28-8-83 by Dr .Capt. Mohammad Anwar PW.8. The same doctor had on 26-8-83 performed the post- mortem examination on the deadbody of Safdar Ali deceased and had also examined Shaukat Ali injured PW.
6. Rehmat Ali accused, medically examined on the same day i.e. 26-8-83, was found to be semi- conscious and in state of shock, with very feeble pulse. He received two injuries with blunt weapon and one injury with a sharp-edged weapon, the seat of the incised injury being front right portion of the chest. In the opinion of* the learned counsel for the accused, testimony of Dr .Mohammad Anwar PW.8 has dealt a damaging blow to the case of the prosecution and has actually lent support to the plea of the injured accused persons, Rehmat, Ikram and Latif, and has rendered the version of the accused to be more plausible and acceptable. It has also been submitted by. The learned counsel that Shaukat PW had not received the injuries in the course of the same occurrence and in the manner claimed by the complainant. Although he sustained two incised wounds, besides five abrasions, his shirt did not bear any cut mark, when he was subjected to medical examination. It is maintained that in actual practice there had taken place only one incident at about 7.15 a.m. And no second incident at 8.30 a.m., as is the prosecution claim. Rehmat Ali accused was examined in the hospital at 8 a.m. On 28.8.83 and he was discharged on 30-8-83.
He thus could not possibly be present at the site of the second occurrence, said to have taken place at 8.30 a.m. This would render the prosecution version of-the occurrence of murder to be open to serious doubts. The inference is re-inforced by another factor. The deceased did not suffer any punctured wound, although Abdul Majeed accused is alleged to have actively participated in the occurrence and caused injuries to the deceased with a sua. Latif accused, having himself been injured in the occurrence, was subsequently introduced. He however did not deny his presence at the spot. In investigation undertaken by the higher officers of police, Abdul Majeed, Mohammad Hayat and Mohammad Hanif s/o Abdul Haq accused were found to be innocent. They also did not yield recovery of the weapons, which they were allegedly armed with, at the time of the occurrence.
7. These contentions put forth by the defence have found favour with the learned trial court.
8. In actual practice, according to the accused, Latif brother of Ikram and Rehmat accused had been abducted away at about 7.15 a.m. By Safdar deceased, Shaukat and Manzoor PWs. On becoming aware of that, accused Ikram, Rehmat and a few other persons from the locality came to the house of the deceased and rescued Latif, and, during the scuffle, accused Ikram and Rehmat received injuries at the hands of Safdar, Shaukat and Manzoor, who were armed with dangs and a chhuri. In the same incident, Safdar deceased and Shaukat PW also suffered quite a few injuries.
9. Abduction of sister of complainant took place 9/10 years before the instant incident. Asghar Ali, brother of Ikram accused, had allegedly taken her away and then restored her. During these 9/10 years however no untoward incident had ever occurred. After such a long time, the accused persons could not possibly be expected to bear- any grudge against tip complainant party and perform any act of revengefulness against the aforesaid background. If there could be in existence any malice, it could have been in the minds of the family members of the abductee, and could find its manifestation in the shape of an offensive, on the part of the family of the girl. The stated motive thus is a far-fetched one and it does not appeal to reason. Occurrence must have taken place against a different background; and the version, of the accused then may have to be accorded recognition. According to them, they had not supported the complainant in the last election and he had throughout been inimically disposed towards them. Even this plea however, on the face of it, is un-plausible. Barkat Ali complainant's son Safdar Ali was murdered and another son Shaukat Ali was injured. How could he compromise with the actual assailants and spare them, at. The alter of his political status, and to appease his political rivalry.
10. Had Barkat Ali complainant, alongwith other PWs, as Niamat Ali, Nazir, Mahmood, Manzoor, etc. Been present on the occasion, they, especially Barkat Ali, must have effectively intervened, with utmost promptitude and, even without caring for their own lives. But they acted as idle spectators and took no practical steps to save Safdar and Shaukat Ali from the assault. In the FIR it has been stated by the complainant that he alongwith Niamat Ali saw Safdar Ali to be under attack and afterwards Shaukat came there; and it has not been said that they had rushed to the scene of occurrence to save Safdar Ali. The conduct of the complainant and the other PWs thus was not a natural and normal one; and the learned trial court has come to the conclusion that the complainant even was not -available on the occasion. The PWs, being from outside the locality, having arrived at the spot, at the relevant time, per chance, must be regarded as casual or chance and not natural witnesses. Their testimony is in conflict with the medical evidence; and it has rightly been rejected by the learned trial judge, who has not given any importance to the recoveries, and is of the view that the motive also has not been proved by the prosecution. It has particularly been observed by the learned trial court that recovery of chhuri P-5 from Rehmat accused was extremely doubtful, as he had been admitted in the hospital on the day of occurrence at 8.00 a.m.
And remained there for six days. Thus his arrest, allegedly made on 1-9-83, followed by recovery of chhuri P-5, effected on 4-9-83, was a matter of doubt.
11. Learned trial court is of the firm view that no second incident had taken place at 8.30 a.m. And Rehmat accused could not possibly take part in it, having already been admitted in the hospital, at 8 a.m. Medical evidence has rightly been given preference over the ocular account of the occurrence, furnished by the alleged eye-witnesses, whose presence at the spot has very much been doubted by the court and whose testimony therefore has been discarded. Three accused persons, namely Ikram, Rehmat and Hanif s/o Habib had themselves been injured in the occurrence. This fact finds mention even in the FIR. Latif accused having been abducted away by the Copmlainant piny, the accused aforementioned had acted to effect his recovery, and when they were attacked by members of the complainant party, as is alleged, they (the accused) has to act in retaliation and in self-defence; and, in the process, at their hands, two persons belonging to the complainant party, Safdar deceased and Shaukat Ali PW, were also injured. In the opinion of the learned trial judge, however, the accused had exceeded their right of self-defence and' inflicted serious chhuri blows on the persons of Safdar Ali deceased and Shaukat Ali ft not be denied that in fit of fury and in the course of an armed confrontation one cannot. expect