' AUSAF ALI KHAN, J.--- This judgment shall dispose of Murder Reference No,287 of 1989 and Criminal Appeal No,857 of 1989 as both arise out of the same judgment dated the 30th of November, 1989 passed by learned Sessions Judge, Gujrat, whereby he convicted all the accused persons, namely,
(1) Akbar All (25), (2) Rafaqat All (28), (3) Aurangzeb (40), (4) Muhammad Inayat (60), (5) Ghulam Haider (65), (6) Muhammad Ansar (30), (7) Muhammad Ihsan (35) and (8) Muhammad Arshad
(25) and sentenced Muhammad Arshad to death with a fine of Rs,2,000 in default thereof to undergo further R.I. For one year under section 302, P.P.C. He was also ordered to deposit Rs,20,000 as compensation to the legal heirs of the deceased, in default thereof to undergo further six months' S.I. Besides, convicting all the abovementioned accused he sentenced them to 3 years each with a fine of Rs,2,000, in default thereof to undergo further R.I. For six months, under section 307/149, P.P.C. They were also burdened with an amount of Rs,2,000 each for the compensation of Riaz injured P.W., in default thereof to undergo further S.I. For three months. Under section 148, P.P.C.
All the aforesaid accused were convicted and sentenced for a period of 2 years' R.I. With a tine of Rs,1,000 in default thereof to undergo further R.I. For 6 months. All the sentences were ordered to run concurrently. The accused were allowed the benefit of section 382-B of Cr.P.C.
2. All the co-accused persons are closely related to each other. The occurrence had taken place on the 28th of March, 1987 at about 9-30 a.m. In the Haveli. Of Riaz complainant in the Abadi of village Kote Kana within area of Police Station Kunjah. The prosecution case is that the complainant (P.W.9) and his brother Nawaz (P.W.8) were present in their Haveli that they saw Arshad accused living in the opposite house, emerging therefrom and entered Haveli of the complainant alongwith all the aforementioned accused persons, Irshad accused was armed with .12 bore gun, Ahsan accused carrying .7 mm rifle, Ansar accused with .12 bore gun and the remaining accused persons equipped with Sotas commenced an attack on exhortation of Ghulam Haider accused. Akbar accused opened the attack and dealt Sota blow on the head of Riaz P.W. Who fell down and Akbar repeated Sota blows hitting his legs followed by Sota blows of the other accused persons. The accused with fire-arm, however, had given butt blows to him. The complainant Muhammad Nawaz (P.W.9) was raising alarm all the time which attracted his father Atta Muhammad alongwith Azam and Asghar at the spot. Ghulam Haider accused again prompted his co-accused to fire shot at Atta Muhammad. It was then Arshad accused fired a shot at the chest of Atta Muhammad and brought him down. The accused persons thereafter continued firing in the air and then made good their escape.
3. Motive stated by the complainant is that couple of months before the occurrence Akbar accused had received injuries for which a case was registered against the complainant and others and the accused persons in order to avenge the same committed the offence. Immediately after the incident, the complainant left for the police station and there 'reported the matter with police. F.I.R.
Ex1i.PJ. Was recorded at 10-30- a.m. On the same day by Tariq Haneef, Inspector (P.W.11). He had removed blood-stained earth from the place where Atta Muhammad was fired at vide Exh.P.G., witnessed by Muhammad Afzal (P.W.7). Akbar All accused was also found in hospital having injuries, therefore, the Investigating Officer after arresting him sent him for medical examination.
The Investigating Officer had completed various stages of investigation. Sotas P.1, P.2, P.3 and P.5 had been recovered respectively at the instance of Inayat, Aurangzeb, Rafaqat and Akbar Ali accused persons on two occasions i,e. The 28th of March, 1987 and the 13th of April, 1987. The witnesses about them are Arshad Javaid (P.W.4), Ghulam Rasool (P.W.6) and Muhammad Afzal (P.W.7). The Sotas were, however, not blood-stained. Aslam accused led to recovery of .7 mm rifle P.4 which was taken into possession vide recovery memo. Exh.P.E. On the 28th of April, 1987 in presence of Muhammad Alum (P.W.5). Next day on 29th of April, 1987 Arshad accused had got recovered a gun P.6 which was also secured by the Investigating Officer vide memo. Exh.P.H., in presence of Muhammad Afzal (P.W.7).
4. Few words about medical evidence. Dr. Tallat Iqbal (P.W.10) had .Examined Riaz P.W. On 28th of March, 1987 at 12-45 p.m. And found as many as 10 injuries. All of which were lacerated wounds excepting two contused swellin&s. All the injuries were simple except the following two which were declared grievous on the basis of X-ray report:--
(1) Contused swelling of whole of left forearm with abrasion 1 c.m. x 1 c.m. On back of lower part of left forearm..
(2) Lacerated wound 2.5 c.m. x 1 c.m. Muscle deep on front of middle of left leg. Clinically there was suspicion of fracture of the bone deep.
' The report of Doctor is Exh.P.K.
5. On the 29th of March, 1987 Dr. Ghulam Abbas Zafar (P.W.12) had conducted autopsy on the dead body of Atta Muhammad aged about 50/55 years and had found the following injuries:--
(1) Lacerated big wound with inverted margins which were also burnt.
' The wound was excavated and was about 7 c.m. x 4 c.m. x chest cavity deep, on left side of upper chest, just below the middle third of clavical. The first rib was also fractured at this place. It was entry wound of fire-arm. There was no other injury.
' The injuries were ante-mortem and sufficient to cause death instantaneously. Time between injuries and death was immediate and the time between death and post-mortem could be within 18 to 30 hours.
6. The defence plea spelt out from the statement of Akbar All accused recorded under section 342, Cr.P.C. And the statement of Ansar accused given on oath under section 342, Cr.P.C. Is that on the day of occurrence, it was Atta Muhammad deceased who while armed with a gun and his sons Riaz P.W. And Ejaz carrying sticks attacked Akbar All, while he was passing through the street. Fire shot of Atta Muhammad deceased injured the accused but before Riaz P.W. And Ejaz could also inflict Sota blows on him one Ghulam Qadir and Ansar accused (cousin of Arshad accused) started grappling with the deceased and snatched the gun from him and then Ansar accused fired a shot which brought down Atta Muhammad (deceased). Ghulam Qadir then dealt Sota blows to Riaz P.W., whereupon Ansar accused inflicted butt blows to Riaz P.W. The other, accused allegedly were not present at the spot.
7. According to the learned counsel for the appellants the defence plea is to be read in juxtaposition with prosecution case and plea to be upheld if possibility or probability of its correctness is there. There is no cavil with this principle of law but the defence plea in this case itself demolishes the case of exercise of right of private defence. Ansar accused admittedly shot down the deceased after he had snatched the gun from him. There was no point in shooting Atta Muhammad to death after he had been deprived of weapon and was left without any arm and was not in a position to harm Ansar or Akbar Ali accused. Ghulam Qadir accused is stated to have caused injuries to Riaz P.W. With Sota and Ansar accused had dealt butt blows to Riaz P.W. Even after any apprehension of the injured had evaporated. Ghulam Qadir accused was not produced in defence either. The learned counsel for the appellants has seriously attacked the prosecution evidence which has to stand on its own legs even if veracity of the defence plea is not there. In the first instance, the learned counsel has contended that place of occurrence was not what the P.Ws.
Have stated i,e. In the Haveli of deceased but was in street. There are two places of occurrence in this case; one where the deceased had received fatal injury and the place where Riaz P.W. Had received numerous injuries with blunt weapon. Site plan Exhs.PA. And PA./1 drawn up by Draftsman (P.W.1) describes point 'A' in front of the room of deceased wherefrom blood-stained earth had been taken. The fact that dead body was removed and placed at the cot does not materially affect or negative the question of venue of injuries to the deceased. Point 'B' of the said plan where Riaz (P.W.) had received injuries is also within premises of the Haveli of the deceased although it is quite adjacent to the street. P.W. Has stated that there was no boundary wall of the Haveli and perhaps this also had prompted the learned counsel to question the place of occurrence. We are in no manner of doubt that the deceased and Riaz P.W. Had received injuries within the area of Haveli of the petitioner as indicated by witnesses and the site plan. About the motive, the contention of the learned counsel for appellants was that it serves the prosecution to implead the accused with whom they have background of unceased hostility, even murders having taken place earlier between the parties. The motive being like a double-edged weapon cuts both ways. Motive also prompts the accused to commit the offence. The motive in this case is quite plausible that couple of months before the occurrence Akbar accused had been injured by the C complainant party and, therefore, obviously now the turn was of the accused persons to wreak vengeance.
8. The learned counsel for the appellants is also unjustly sceptic about the genuineness of the ocular account. The occurrence had taken place in the Haveli of both the eye-witnesses who are real brothers. They are, therefore, natural witnesses. Riaz P.W. Was injured and received many injuries whereas Nawaz P.W. Was lucky to escape. He could not possibly come to the help of Riaz P.W. And the deceased in view of the attack with weapons including fire-arm. The testimony of the eye-witnesses in spite of being interested have to be believed in the circumstances of the case, especially when they are backed up by prompt F.I.R., motive and medical evidence, besides incriminating recoveries of weapons from the accused. The objection put forward by the learned counsel for the appellants with some confidence was with respect to non-explanation of the fire- arm injuries of Akbar All accused by the witnesses and also the F.I.R. Presence of injuries on Akbar accused at lease shows his presence at the time of occurrence. These injuries could not be caused to him by the deceased as defence has been disbelieved, discussed supra. Medico-legal report Exh.P.S. Reveals solitary entry wound on his left arm. But this pellet injury could be caused at the time of occurrence involving attack of eight accused persons upon the deceased and Riaz P.W.
Stray pellets of fire-arm of Arshad accused could injure him as he was standing nearby at the relevant time. The .12 bore gun, as was used by Arshad accused, spread pellets. Thus, Akbar could receive injury in question even if it was not caused by friendly hand and its non-mention in F.I.R. Or the witnesses in examination-in-chief does not react on the credibility of prosecution version.
9. For reasons aforementioned we are convinced that Arshad accused had caused fatal fire-arm injury by gun to the deceased. He, therefore, was rightly convicted by the learned trial Court under section 302, P.P.C. Since we are not in the know of what had immediately preceded the attack of the accused, immediate motive to commit the offence being not clear, therefore, we would like to reduce the sentence from death to life imprisonment. .
10. Ahsan accused while armed with .7 mm rifle and the remaining accused with sticks, after forming unlawful assembly, had attacked and injured Riaz P.W., in furtherance of common object, were also therefore, rightly held guilty. But since the injured had recei'ed the injuries by blunt weapon out of which two were grievous on non-vital part, we instead of convicting and sentencing the accused persons under section 307/149, P.P.C., would convict them under section 325/349, P.P.C. To undergo three years' R.I. The sentence under section 148, P.P.C. Of two years is, however, maintained. Similarly the sentences of fine are also maintained qua the appellants. The benefit of section 382-B, Cr P C shall also be admissible to all the appellants.
11. Resultantly sentence of death of Arshad accused is not confirmed, being converted to life imprisonment. The reference and appeal stand disposed of in the said terms.