' The present criminal appeal calls into question the legality and propriety of the impugned judgment dated 14-10-1985, passed by Additional Sessions Judge, Gujrat, whereby he convicted the appellants under section 324, P.P.C. And sentenced them to 2 years' R.I. With a fine of Rs,2,000 each, or in default thereof to suffer further R.I. Of 3 months each with the direction that half of the fine, if realised, shall be paid to injured P.Ws. Muhammad Khan, Muhammad Iqbal and Muhammad Akram. The appellants were allowed the benefit of section 382-B, Cr.P.C.
' By the same judgment, the eight co-accused were acquitted. All the accused were sent up for trial on the charge under sections 148, 302/149 and 307/149, P.P.C.
2. The brief facts of the case are as follows:-- "On 3-10-1979 at 7-30 p.m. Ghulam Muhammad, P.W.9 lodged complaint, Exh.PA., contending that he was a resident of Nawan Lok and had his tube-well at a distance of 16 Killas from the village towards its north. At Deegerwela, he alongwith Muhammad Aslam deceased and his son Muhammad Akram, P.W.11, and Muhammad Iqbal, P.W.12 set off from their tube-well for their village.
When they reached close to the Pacca road, Muhammad Ashraf deceased also his son, met them when in the later portion of the noon he alongwith his son Muhammad Iqbal, P.W.10 Muhammad Akram, P.W.11 and Muhammad Aslam son of Muhammad Inayat, who was the son of his deceased brother, all Waraich by caste and all residents of the village on the neighbouring thoroughfare reached close to the land of Zia Ullah when from the sugarcane crop, the accused including the two P.Os. Gave them surprise. Muhammad Shafi was armed with a Kulhari, Pervez, proclaimed offender armed with a Chhuri, Ifzaal, P.O. Also armed with Chhuri whereas Iqbal, Aslam son of Khushi Muhammad, Muhammad Inayat, Fateh Ali, Zia Ullah, all Jat Waraich by caste and all residents of the village, all were armed with Sotas, where Muhammad Ashraf and Muhammad Aslam sons of Malik and Muhammad Aslam son of Muhammad Hussain armed with .12 bore revolver were found waylaying them. Raising Lalkara they made appearance. Ultimately on their making the appearance Pervaiz P.O. Landed a Chhuri blow to Ashraf, which struck him in his abdomen. The second blow with Chhuri was landed by Ifzaal on Ashraf causing injury in his left flank. Pervaiz with the Chhuri caused injury to Aslam deceased in his back. The second Chhuri blow was given by Ifzaal (P.O.) which hit the deceased in his head. He alongwith Akram (P.W.) and Iqbal (P.W.10) stepped forwarded to save them from the clutches of the accused when Muhammad Shafi from the blunt side of the Kulhari caused injury to him in his head. Muhammad Aslam and Muhammad Ashraf both fell down. Ashraf gave a Sota blow which hit Muhammad Akram (P.W.11) in his left hand. Ashraf then gave a Sota blow, which fell on his head. Aslam son of Maalik landed a Sota blow in his right hand. Thereafter Iqbal, Inayat, Fateh Ali, Zia, Aslam son of Khushi Muhammad with their Sotas started giving blows which hit him and his two sons P.W.10 and P.W.11. He and his son Iqbal picked up the Sotas of Muhammad Ashraf and Muhammad Aslam from the ground and caused injuries to Pervaiz, Iqbal, Ifzaal and Muhammad Shafi in exercise of the right of self-defence.
In the meantime, Muhammad. Sadiq, caste Randhawa (not produced) after witnessing the occurrence for himself reached the spot. When Muhammad Sharif and Muhammad Aslam both fired a shot each and lent a threat that no one should draw nearer and if somebody dared to do so, they would take his life. All the accused raising Lalkara went in the southern direction.
Muhammad Aslam and Muhammad Ashraf deceased due to the injuries received, died at the spot.
3. The motive for the offence was stated to be that three years ago Rashid, the brother of Zia Ullah accused had murdered the brother of Ghulam Rasul, the first informant, in which case Rashid, the brother of Zia, the nephew of Fateh Ali accused and Akram accused stood challaned. Besides about four months prior to the occurrence, Muhammad Ashraf deceased and few others had given beating to Nazir Begum, wife of Shall accused, in respect of which a report was lodged with the police. It was out of the same grievance that all the accused in execution of their common intention after due deliberations and after variously arming themselves had done his son Muhammad Ashraf and his nephew Muhammad Aslam to death. After leaving Muhammad Sadiq, resident of Kot Randhawa to look after the dead bodies while he was on his way to police station for lodging the F.I.R. That he had come across him where he made the complaint and prayed action.
' On the said complaint, F.I.R. Exh.PA./1 was recorded. Exh.PA./1 seems to be not legible. Its legible version seems to have been subsequently tendered in evidence as Exh.PA./2 and a case was registered against the accused under section 302/307/148/149, P.P.C. Pervaiz could not be traced out by police, who was declared a proclaimed offender and cited in red, in column No,2 of the report under section 173, Cr.P.C. Ifzaal aftei being enlarged on bail disappeared as a result of which he was also declared a proclaimed offender. The rest of the accused eleven in number were made to face the charge to which they pleaded not guilty and claimed to be tried.
4. To prove its case, the prosecution produced 15 witnesses.
5. Altaf Hussain, Head Constable appeared as P.W.1. According to him, on 3-10-1979 he was posted as Head Constable in Police Station Saddar Gujrat. On the receipt of written complaint sent by Nadir Ali, S.I. Through Muhammad Sharif, Constable, he had drawn up the formal F.I.R., Exh.PA./1, in accordance with the written complaint, Exh.P.A. The witness further stated that on 5-10-1979 he was delivered two sealed parcels pertaining to this case by Nadir AR S.I. Which he had kept in the police Maikhana for safe custody. On 23-1-1980 the witness delivered these two parcels to Mukhtar Ahmed for onward transmission to the office of Chemical Examiner.
6. Mukhtar Ahmed, Constable appeared as P.W.2. According to him in the month of January, 1980 while posted in Police Station Saddar Gujrat, on 23-1-1980 Altaf Hussain handed over to him two sealed parcels containing blood-stained earth for onward transmission to the office of the Chemical Examiner, Lahore. He took these parcels and delivered them in the aforesaid office intact.
7. Muhammad Riaz, Constable appeared as P.W.3. According to him in the month of October, 1979 he was attached to Police Station Saddar Gujrat. He had accompanied the Investigating Officer to the spot wherefrom he safely carried the dead bodies of Muhammad Ashraf and Muhammad Aslam to the mortuary for the purpose of post-mortem examination. After the post-mortem examination, he had delivered the papers to Nadir Ali, Investigating Officer.
8. Dr. Riaz Ahmed Chaudhry appeared as P.W.4. According to him, on 4-10-1979 at 5-00 a.m., he had medically examined Ghulam Muhammad son of Sardar Khan, resident of village Nawan Lok, Police Station Saddar, Gujrat who was brought by Police Constable, Muhammad Ashraf No,556, and found the following injuries bn his person:--
(1) Contusion 1/4" x 1/4" on right little finger.
(2) Lacerated wound 1-1/2" x bone deep on right side of scalp.
(3) Swelling on left shoulder blade.
(4) Contusion 1" x 1" on left upper arm.
(5) Swelling 1/2" x 1-1/4" on top of scalp.
' Injuries Nos.1, 2 and 3 were kept under observation. The rest were declared simple. All the injuries, according to the doctor, were caused by blunt weapons within the duration of 12 hours. Exh.P.B.
Wasthe correct carbon copy of his medico-legal report which was in his hand and was signed by him. No fracture was found on the right shoulder, skull, and right and left hand of Ghulam Muhammad, after X-ray. So the injuries were declared simple. Exh.P.B./1 was his X-ray report.
' On the same day at 5-00 a.m. The doctor medically examined Muhammad Akram son of Ghulam Muhammad of the same village and found the following injuries on his person:--
(1) Swelling 1-1/2" x 1" on dorsal of left (2) hand. Swelling 1-1/2" x 1" on dorsal (3) of left wrist. Swelling 2" x 1" on left upper arm.
(4) Swelling 1-1/2" x 1-1/4" on frontal part of scalp.
(5) Swelling 1/2" x 1" on occiptal region of scalp.
' Injuries Nos.1, 2 and 5 were kept under observation. The rest were simple within duration of 12 hours.
All the injuries were caused by blunt weapon. Exh.P.C. Was the correct carbon copy of his medico- legal report which was in his hand and signed by him. After X-ray no fracture was found in the skull, left hand and left wrist. So the injuries were declared simple. Exh.P.C./1 was his X-ray opinion.
' On the same day, the same doctor medically examined Muhammad Iqbal son of Ghulam Muhammad, resident of Nawan Lok, Police Station Saddar, Gujrat, who was brought by Ahmed Ali, Constable No,325, and found the following injt.Ries on his person:-
(1) Swelling 1" x 1" on right side of scalp.
(2) The injury was kept under observation.
' It was caused by blunt weapon within duration of 12 hours. The patient had not come for X-ray.
Exh.P.D. Was the correct carbon copy of his medico-legal report. It was in his band and was signed by him.
9. Ghulam Sarwar, A.S.I. Appeared as P.W.S. According to him, he had prepared the copies, Exh.P.E.
And Exh.P.F. From the original record which were in his hand and were signed by him.
10. Muhammad Hanif, S.I. Appeared as P.W.6. According to him in 1979 he was posted as M.H.C. At Police Station Saddar Gujrat. The witness had brought with him the original Roznamcha of Police Station Saddar, Gujrat relating to 19-4-1979.
11. Dr. Muhammad Rashid Javaid, M.O. Appeared as P.W.7. According to him, while posted as Medical Officer, Aziz Bhatti Shaheed Hospital, Gujrat, he had conducted post-mortem examination on 4-10-1979 on the dead body of Muhammad Ashraf son of Ghulam Muhammad, resident of Nawan Lok, who was brought by F.C. No,784 and identified by Shabbir Hussain, Muhammad Khan and Muhammad Ali and made the following observations:-- ' It was a dead body of a male about 25 years old, who was well built. His face was pale and mouth was closed. His eyes were also closed. Digested food material was coming from the nose alongwith froth material. Rigor mortis was present on back muscles and both extremeties. On external examination, the doctor found the following injuries:--
(1) A stab wound 1-1/4" x 3/4" x going deep into cavity on the left side of abdomen near the mid line and below umbilicus. The omentum was coining out.
(2) An incised wound 2" x 3/4" x muscle deep on left side of abdomen in the lumber area.
(3) An abrasion 1" x 1/2" on left elbow on outer part.
' On dissection, all the three cavities were opened. On opening the abdominal cavity, the abdominal wall and the peritoneum were found ruptured. The mesentry was also ruptured. The abdominal cavity was full of blood. The omentum was punctured against injury No,1. All the other organs of the body were found healthy and the stomach contained digested food. Small intestines contained chyme while large intestines contained faecal matter.
' All the injuries were ante-mortem in nature. Injuries Nos.1 and 2 were caused by sharp-edged weapon. Injury No,3 was caused with blunt weapon. The injury was grievous and dangerous to life.
' In the opinion of the doctor, after his careful external examination, he was of the opinion that death had occurred due to shock and haemorrhage due to injury No,1 which was sufficient to cause death in the ordinary course of nature. Probable time that had elapsed between the injuries and death was immediate and between death and post-mortem was about 18 to 20 hours. Exh.P.G.
Was the correct carbon copy of post-mortem report. It was in his hand and signed by him.
Exh.P.G./1 was the sketch of the injuries.
' On the same day at 1-00 p.m., the same doctor conducted postmortem examination on the dead body of Muhammad Aslam son of Muhammad Inayat, Jat Waraich, resident of Nawan Lok, who was brought by the police and identified by Bashir Ahmad son of Muhammad Khan and Muhammad All son of Muhammad Khan. The doctor made the following observation:-- "It was a dead body of a young man about 27 years old, well built. Face was pale. Eyes were closed.
Rigor mortis was present. The dead body was wearing shirt and Chaddar."
' On external examination, he found the following injuries:--
(1) A lacerated wound 2" x 1/2" scalp deep on the head.
(2) A stab wound 4-1/2" x 1" into cavity deep on back of left side of chest and 4-1/4" below left inferior scapular annal.
(3) An abrasion 1/2" x 1-1/4" on left elbow just above and outer part of the elbow-joint.
' On dissection all the three cavities were opened. On opening the chest cavity, the left side of the plurae was ruptured. Left lung was ruptured. Heart and pericardium were also ruptured. The left side of chest was full of clotted blood. All the other organs of the body were found healthy.
Stomach contained pasty fluid and small intestines contained chyme. Large intestines were empty.
All the injuries were ante-mortem in nature. Injury No,2 was caused by sharp-edged weapon. The rest were caused by blunt weapon.
' After his careful external and internal examination, the doctor was of the opinion that death had occurred by shock and haemorrhage due to injury No,2, which was severe enough to cause death in the ordinary course of nature. Probable time that had elapsed between injuries and death was immediate and between death and post-mortem was about 18 to 20 hours. Exh.P.H. Was the correct carbon copy of his post-mortem report. It was in his hand and signed by him. Exh.P.H./1 was the sketch of the injuries. It was also prepared by him and signed by him.The doctor had handed over the last worn clothes of both the deceased after the post-mortem examination to the Constable alongwith his post-mortem report which were Exh.P.G. And Exh.P.H., respectively.
12. Mian Muhammad Ashraf, Draftsma n appeared as P.W.8. According to him; he had prepared the site plan in triplicate in the scale of the one inch to 50 feet, of the place of occurrence on the pointation of the P.Ws. And under the supervision of the police. All the drawings and notes in black ink were in his hand and signed by him. Those were Exh.P.J., Exh.P.J./1 and Exh.P.J./2.
13. Ghulam Muhammad appeared as P.W.9. According to him, Muhammad Ashraf deceased was his son whereas Akram was the son of his brother. About 2-1/2 years back it was Deegarwela. The witness alongwith Muhammad Akram, Iqbal and Aslam was proceeding to the village from their Dera. When they reached the metalled road, Ashraf deceased, his elder son joined them from the city. They then proceeded to the village. When they reached near the tube-well owned by one Zia Ullah and moved towards the village, all the thirteen accused emerged from the sugarcane field and raised the Lalkara. Muhammad Shaft, Aslam and Inayat, Pervaiz, Afzaal, Iqbal, Fateh Ali, Zia Ullah, all residents of village Nawan Lok; Aslam son of Maalik, Muhammad Ashraf son of Muhammad Hussain and Zafar, residents of Bhgoola, Muhammad Sharif resident of Kalowal, Muhammad Aslam son of Muhammad Hussain, resident of Saro Chak were their names. According to the witness, Pervaiz and Afzal accused were holding Chhuris in their hands, Muhammad Shafi was armed with a hatchet, Sharif and Aslam son of Muhammad Hussain were armed with pistols and the remaining accused were equipped with sticks.
' Pervaiz accused pierced a Chhuri into the abdomen of Ashraf. Afzaal accused then thrust Chhuri blow, which hit the left flank of Muhammad Ashraf. Then Pervaiz, absconder gave Chhuri blow to Aslam, which hit the left side of his back. Afzal accused then gave a Chhuri blow on the head of Aslam. The witness claimed to step forward to rescue them when Shafi accused gave a hatchet blow on his head. Ashraf inflicted a stick blow on the back of his head. Aslam son of Malik gave a stick blow on his right hand. After receiving injuries at the hand of the accused, the witness snatched the stick from Muhammad Ashraf accused and belaboured Iqbal and Muhammad Shafi accused. His sons, Muhammad Aslam and Iqbal stepped forward but they were beaten by the accused. He could not tell as to who from amongst the accused had given beating to Iqbal and Aslam. Muhammad Sadiq was attracted to the spot on listening to the hue and cry. He stepped forward, but he was threatened by Sharif and Muhammad Aslam son of Muhammad Hussain, who feed shots in the air. They shouted that if Muhammad Sadiq attempted to come near to them, they would kill him. Ashraf and Aslam succumbed to their injuries at the spot. The accused fled away towards south.
' The motive for the occurrence, according to the witness, was that his son Iqbal and Qamar son of Shafi accused had quarrelled while coming back from the school. Since his son had to pass from in front of the house of Shafi for reaching his house, he was beaten by Mst. Naziran wife of Shafi accused. When Iqbal happened to pass from in front of her house, he raised hue and cry on the receipt of stick blow on his head whereupon his son Ashraf joined Iqbal and gave a stick blow to Mst. Naziran, as a result of which she sustained injury on her head. She went to the police station to lodge the report but she was given a deaf ear inasmuch as no action was taken on her report. The accused, therefore, nourished a grudge and in conspiracy with each other launched an attack upon his son and nephew and killed them.
' The witness further stated that after the occurrence, he proceeded to police station on foot and when he reached near Police Post, Shandaula, he happened to meet Nadir Khan, S.I., who recorded his statement Exh.PA. It was read over to him and in token of its correctness, he had thumb-marked the same. According to him, his statement was recorded at the police post. Nadir Khan, S.I. Was posted at Police Station Saddar but incidentally he was found standing on the road side near the Police Post, Shandaula. When he reported the matter to Nadir Khan, he took him to the police post and recorded his statement there. The witness further stated that Shafi, Aslam son of Khushi Muhammad and Inayat accused are brothers inter se. Pervaiz absconder, Ifzaal and Iqbal accused were the sons of the aforesaid Shafi accused. Fateh All and Zia Ullah were not related to the aforesaid accused but they belonged to their party. Zafar accused was the sister's son of Shafi accused. Ashraf accused was the uncle's son of Zafar accused. Aslam son of Muhammad Maalik accused was also related to Ashraf and Zafar accused from the father's side. Sharif accused was the sister's son of Fateh All accused and was also the son-in-law of Fateh All accused. Aslam son of Muhammad Hussain accused was son-in-law of Shafi accused. Pervaiz accused was an absconder.
14. Muhammad Iqbal appeared as P.W.10. According to him, he lived with his father Ghulam Muhammad. Their tube-well was at a distance of 16 Killas towards the north of village. About 2-1/2 years back at Deegarwela, the witness, his father, his brother, Akram and his cousin Muhammad Aslam were proceeding from the Dera towards the village. When they reached the metalled road, his brother Ashraf joined them from the city. They all five proceeded ahead. They moved towards left from the tube-well owned by one Zia Ullah and were still on the path when the accused present in Court emerged from the field of sugarcane where they had hidden themselves and were lying there to wait for them. According to the witness, the accused were thirteen in number. They were Muhammad Shafi, Aslam son of Khushi and Inayat, who were brothers inter se. Pervaiz, Afzaal and Iqbal sons of Shafi, Fateh Ali, Zia Ullah, all residents of village Nawan Lok, Ashraf, Aslam son of Malik and Zafar reisdents of Bhagoola, Sharif, Aslam son of Muhammad Hussain, residents of Saro Chak and Muhammad Sharif, resident of Kalowal. Pervaiz and Ifzaal, according to the witness, were armed with Chhuris, whereas Shafi accused was holding a hatchet. Sharif and Aslam son of Muhammad Hussain were holding pistols. The remaining accused were armed with sticks.
' Shafi accused raised out Lalkara. Pervaiz accused gave a Chhuri blow in the abdomen of Ashraf deceased. The second blow by Chuuri was given by Afzal accused to Ashraf, which landed on the left flank of Ashraf. Thereafter Pervaiz absconder gave Chhuri blow to Aslam which hit the back of Aslam. Afzal accused gave a Chhuri blow on the head of Aslam. The witness, his brother Akram and his father Ghulam Muhammad stepped forward to rescue Aslam and Ashraf when Shafi accused inflicted a hatchet blow on the head of his father. Ashraf accused gave a stick blow on the head of his father. The witness and his father picked up the sticks belonging to Ashraf and Aslam deceased which were lying on the ground and gave beating to Iqbal and Aslam son of Khushi. All the accused then encircled the witness, his father and his brother Aslam and gave beating to them. He was also injured. He was medically examined. Meanwhile, Sadiq resident of Kot Randhawa reached there and witnessed the occurrnece. He stepped forward to render help but Sharif and Aslam son of Muhammad Hussain fired in the air and threatened him with life, if he dared to come near them.
The accused then went away towards south. Aslam and Ashraf took one or two breaths and then expired at the spot. They started weeping at the spot. His lather left for the city and the witness claimed to be present at the spot when the police party reached there. His statement was recorded by the police at the spot. According to the witness, the motive for the attack was that he and Qamar son of Shafi accused had quarrelled while going home from the school. The witness gave a slap to Qamar, when reached home, he reported the matter to his mother, Mst. Naziran. The aforesaid lady picked up a stick and inflicted the same on his head as a result of which he sustained injuries. Meanwhile, his brother Ashraf reached there. He snatched the stick from Mst.
Naziran and inflicted the same on her head as a result of which she sustained injury. Both the parties thereafter reached the police station where their case was not registered but the case of the other side was registered. It yielded no result and no body from either side was apprehended.
The accused on account of this grudge had killed his brother and his cousin.
15. Muhammad Akram appeared as P.W.11. According to him, their tube-well was at a distance of 16 Killas towards the north of the village. About 2-1/2 years back, he and his father, his brother Muhammad Iqbal and his cousin Muhammad Aslam proceeded to the village from the tube-well. It was Deegarwela at that time. When they reached the metalled road, Muhammad Ashraf, his brother joined them who had come from the side of the city. They proceeded ahead towards the village and when reached near the tube-well belonging to one Zia Ullah, they turned themselves towards west. At that time, Muhammad Shafi, Inayat, Pervaiz, Afmal, Iqbal, Fateh Ali, Zia Ullah, Ashraf, Zafar, Aslam son of Muhammad Hussain, Aslam son of Malik and Aslam son of Khushi Muhammad and Sharif accused present in the Court including Pervaiz absconder emerged from the field of sugarcane. Pervaiz and Afzal accused were armed with Chhuris, Shard and Aslam son of Muhammad Hussain were armed with pistols, Sharif was holding a hatchet. The remaining accused were armed with sticks.
' Shafi accused raised out Lalkara. Pervaiz inflicted a Chhuri blow to Ashraf which hit the abdomen of Ashraf. The second blow by Chhuri was given by Afzaal accused; which hit the left flank of Ashraf.
Pervaiz accused then thrust a Chhuri blow to Aslam which hit the left side of the back of Aslam. The second blow by Chhuri was given by Afzaal accused which hit the head of Aslam. Shafi accused inflicted a hatchet blow which landed on the head of his father. Ashraf accused, gave a stick blow on the back of the head of his father.. Aslam son of Malik accused inflicted a stick blow on the right hand of his father. His father Ghulam Muhammad and his brother, Iqbal picked up the sticks of Ashraf and Aslam from the ground and gave beating to Shafi, Pervaiz, Iqbal accused, Zafar and Ashraf accused inflicted stick blows to him. All the accused then started belabouring his father Ghulam Muhammad, his brother Iqbal and the winters. Meanwhile, Sadiq, resident of Kot Randhawa reached there. Sharif and Aslam son of Muhammad Hussain fired each in the air and extended threats by addressing to Sadiq that in case he (Sadiq) attempted to come near them, he would be killed. The accused thereafter went away towards south. Ashraf and Aslam had fallen down on the receipt of Chhuri blows and they succumbed to their injuries at the spot. The witness was medically examined by the doctor.
16. Ghulam Nabi appeared as P.W.12. According to him, he was serving as a Teacher in the Government High School, village Neowali. This village was at a distance of two or three miles from village Bhagoola. The witness came back home daily. According to him, the Abadi of village Nawan Lok was at a distance of 5/6 Killas from his village.
' About 2-1/2 years back, according to him, he was made to join the police investigation in the instant case. In his presence the Investigating Officer had collected blood-stained earth from the places where the dead bodies of Ashraf and Aslam were lying. Those were made separately into sealed parcels vide Exh.P.K. And Exh.P.L. Respectively. Both those memos. Were attested by the witness besides Anwar.
17. Muhammad Ali appeared as P.W.13. According to him, village Sagowal was at a distance of 6/7 miles from his village. The witness added that he used to come home daily from the office of Union Council where he was posted.
18. About 2-1/2 years back, be was made to join the investigation in the instant case. He had accompanied the dead bodies to the mortuary from the place of occurrence. He had also identified the dead bodies of Ashraf and Aslam deceased at the time of post-mortem examination.
On 13-1-1980 Afzaal accused while in police custody had led to the recovery of Chhurri, Exh.P.1 from the ceiling of the room of his house, which was made into a sealed parcel vide memo. Exh.P.B. It was attested by him besides Yagoob and the Investigating Officer.
19. Manzoor Hussain, S.I. Appeared as P.W.14. According to him in the month of December, 1979 he was posted as S.H.O. Police Station Saddar, Gujrat. On the application of one Bashir filed on behalf of the accused the investigation was made over to him under the order of S.P., Gujrat.
' On 10-1-1980 the witness inspected the spot. On 13-1-1980 Afzaal accused led to the recovery of a Chhurri, weapon of offence, Exh.P.1 from the ceiling of his room, which was taken into possession and made into a sealed parcel vide memo. Exh.P.M. Attested by Muhammad Yagoob and Muhammad All besides him. On 26-1-1980 he submitted the final report under section 173, Cr.P.C. In the instant case and placed Pervaiz Akhtar accused as proclaimed offender. He had got non- bailable warrants issued against Pervaiz Akhtar accused from the Illaq Magistrate, which could not be served upon him for the accused had absconded. He also got a proclamation issued to that effect from the Magistrate. The warrants and the 'proclamation issued by the Maga Magistrate were not on the file.
' In his investigation, Muhammad Aslam son of Muhammad Maalik, Muhammad Ashraf son of Muhammad Hussain and Zafar son of Muhammad Shafi, Muhammad Sharif son of Muhammad Hussain, Zia Ullah son of Allah Ditta and Fateh All son of Wall Dad were found innocent.' They were, however, placed in column No,2.
20. Dr. Muhammad Riaz, who had appeared as P.W.4 was recalled on 20-6-1982, who deposed that while he was posted as Medical Officer at A.B.S. Hospital, Gujrat on 5-10-1979 he conducted the medical examination of Iqbal son of Muhammad Shafi, aged 18 years, resident of Nawan Lok. He found the following injuries on his person:--
(1) Lacerated wound 1" x 1/4" on right side of scalp.
(2) Lacerated wound 1-3/4" into bone deep on top of scalp.
(3) Swelling 1" x 1/2" on left wrist.
(4) Incised wound 1" x 1/4" between right thumb and right index finger.
(5) Abrasion 1/2" x 1/2" on left shoulder.
' Injuries Nos.1, 2 and 3 were kept under observation. The rest were declared simple. Injury No,4 was caused with a sharp-edged weapon while the rest were with blunt weapon, within the duration of 1 to 2 days. The patient had not come for X-ray. So the injury was declared simple. Exh.P.N. Was the correct carbon copy of his medico-legal report. It was in his hand and was signed by him.
21. Nadir Ali, Sub-Inspector had appeared as P.W.15. According to him on 3-10-1979 while posted as S.I. Police Station Saddar, Gujrat, he had recorded the statement of Ghulam Muhammad P.W.
Exh.P.A. Which he had so recorded on his dictation and which he had thumb-marked after the contents were read over to him. He had recorded the said statement while he was on patrol in Shandaula Chowk. He sent Exh.PA. Through Muhammad Sharif Constable to the police station for the formal registration of a case. He himself proceeded to the spot. The complainant Ghulam Muhammad was injured. He prepared his injuries statement Exh.P.O., which was in his hand. After preparing the injuries statement he despatched the complaint to the hospital for medical examination and he himself proceeded to the spot. After reaching the spot, he prepared the injury statements of the two deceased, Exh.P.Q., which were of Aslam whose inquest report was Exh.P.Q./1, whereas that of Ashraf deceased was Exh.P.R. And the inquest report, Exh.P.R./1, which were in his hand and had been correctly prepared by him. He despatched the dead bodies of two deceased through Muhammad Riaz and Mukhtar Ahmed, F.Cs. To the mortuary for their post-mortem examination. He recorded the statements of the witnesses at the spot. He took the blood-stained earth into possession vide memos. Exh.P.K. And Exh.P.L. Iqbal and Akram P.Ws. Had received injuries during the occurrence. He despatched both of them to the hospital for their medical examination.
He also prepared their injuries statements. Exh.P.S. Was of Iqbal P.W., whereas Exh.P.T. Was of Akram P.W., and both of which were in his hand. The witness got the site plans of place of occurrence prepared from the Draftsman which were Exh.P.J., Exh.P.J./1 and Exh.PJ./2 in which the notes in red were in his hand and had been correctly recorded by him. He arrested the accused nine in number.
The rest of the accused were arrested subsequently.
' The witness recovered Kulhari, Exh.P.2 from Muhammad Shafi accused. He had recovered the Kulhari from the roof of the residential house of accused. The said recovery was made on 13-10- 1979. On the same day, Iqbal accused had led to the recovery of a Sota from the sugarcane crop of one Sardara, which was taken into custody by him vide memo. Exh.P.V. On 17-10-1979, Inayat led to the recovery of a Sota from the sugarcane crop of Sardara which was taken into custody by him vide memo. Exh.P.W. Zafar Hassan accused also led to the recovery of a Sota from the paddy crop of someone whose name the witness did not remember, which was taken into custody by him vide memo. Exh.P.K. On the same day Aslam accused son of Maalik led to the recovery of Sota from the same paddy crop, which was taken into custody by him vide memo. Exh.P.Y. On the same day, Ashraf also led to the recovery of Sota from the same paddy crop, which was taken into possession vide memo. Exh.P.Z. On the same day, Fateh Muhammad accused led to the recovery of a Sota from the sugarcane crop of Sardar which was taken into custody vide memo. Exh.P.AA. On 19-10- 1979, Zia accused led to the recovery of a Sota from the sugarcane field of Sardara, which was taken into possession vide memo. Exh.P.BB. He could not identify the Sotas as were present in the Court with reference to each recovery, which were made vide memos. Exh.P.V. To Exh.P.W. Although all the Sotas allegedly recovered were present in the Court and had been shown to him. Without sealing the weapons of offence recovered, he made the same over to the Moharrir for safe custody in the Malkhana. He had, however, rendered the two parcels containing bloodstained earth into sealed parcels and had made them over to the Moharrir for safe custody in the Malkhana.
22. The learned counsel for the appellants and the State have been heard at length; and the record of the case perused with their assistance.
23. The learned counsel for the State supported the impugned judgment and submitted that the conviction of the appellants under the lesser charge of section 324, P.P.C. Was fully justified under the facts and circumstances of the case and does not call for any interference. It was further taken notice of that no criminal revision has been preferred against the impugned judgment whereby the appellants were convicted and sentenced, as stated above, and the eight co-accused were acquitted.
24. On the other hand, the learned counsel for the appellants could only contend for setting aside of the impugned judgment by submitting that the said judgment was against the preponderance of evidence on the record, and that, thus, the conviction of the appellants was against law and facts. However, the said general submissions could not be supported by the learned counsel for the appellants with reference to the evidence on the record by invoking any established principles of appraisal of evidence that may have been violated in the instant case.
25. In fact, a perusal of the evidence on the record fully establishes that the parties being inimical towards each other had come into confrontation. In this respect, reference may be made to the fact that five of the accused had been injured, sustaining injuries with blunt weapons as well as with the sharp-edged weapons, and that the said injuries had remained unexplained by the prosecution until P.Ws. 9 and 10 were compelled to concede the same at the time of their cross- examination. Furthermore, the injuries caused to the deceased by sharp-edged weapons were attributed to the proclaimed offenders, who being proclaimed offenders were not sent up for trial alongwith the present appellants and the acquitted co-accused. Therefore, in keeping with the accepted principles of administration of justice, the accused had been burdened with their individual role in the fateful occurrence and dealt with accordingly by the learned appellate Court; and resultantly, the appellants were convicted under the lesser charge of section 324, P.P.C. And their eight co-accused acquitted, although all of them had been sent up for trial and charged under the provisions of sections 148, 302/149, 307/149, P.P.C. Hence, the impugned judgment is unexceptionable and the conviction and the sentence imposed on the appellants is fully justified on the basis of the evidence on the record. However, as the case pertains to the year 1979, and as such, the appellants had already suffered the agony of protracted trial and had further suffered imprisonment before and after their conviction in 1985, therefore, taking into consideration that they have been extended the benefit of the provisions of section 382-B, Cr.P.C. It is deemed appropriate to reduce the sentence of two years' R.I. Awarded to them, to the period already undergone by them, while maintaining the fine imposed on each of Rs,2,000 or in default thereof to suffer 3 months' R.I. And further maintaining the direction that half of the fine, if realized, shall be paid to the injured P.Ws. Muhammad Khan, Muhammad Iqbal and Muhammad Akram.
26. In accordance with the terms stated above, the present criminal appeal is hereby dismissed.