' Khadim Hussain son of Allah Bakhsh aged 20 years, Ghulam Rasool alias Kalu son of Ghulam Sarwar aged 36 years, Nazar Hussain son of Allah Bakhsh aged 26 years, and Amir Bakhsh son of Sunharay Khan aged 35 years were tried by the learned Additional Sessions Judge, Bahawalpur for the murder of Saeed Ahmad and murderous assault on P.Ws. Sughran Bibi and Mst. Husina, who vide his impugned judgment dated 19-5-1991 convicted and sentenced Khadim Hussain, Ghulam Rasool alias Kalu and Nazar Hussain under section 302/34, P.P.C. For transportation for life each and a fine of Rs,10,000 each, in default whereof to suffer further R.I. For 2 years each. The fine, if realized, half of it was directed to be paid to the legal heirs of the deceased. They were also convicted under section 323/34, P.P.C. To undergo 1 year's R.I. Each. The sentences were directed to run concurrently.
They were extended the benefit of section 382-B, Cr.P.C. Amir Bakhsh appellant was convicted and sentenced under section 307, P.P.C. To undergo 10 years' R.I. And a fine of Rs,10,000, in default whereof to suffer 2 years' R.I. Further. Half of the fine, if realized, was directed to be paid to the legal heirs of the deceased. He was also extended the benefit of section 382-B, Cr.P.C. To assail their conviction and sentence, the appellants have come up in appeal. Amir Bakhsh has filed separate Criminal Appeal No,64 of 1991/BWP. Both the appeals shall be disposed of by this judgment.
2. The prosecution case as unfolded in case, F.I.R. Exh. PH recorded on the statement of P.W.6 Ilahi Bakhsh by Muhammad Ashraf S.H.O. (P.W.14) at Police Station Uch Sharif on 21-12-1988 at 3-30 p.m: is to the effect that the complainant's father Abdul Hameed and Saeed Ahmad were real brothers and about 5 years earlier to the present occurrence- the complainant's father had died and the complainant was brought up by his paternal uncle Saeed Ahmad. His sister Mst. Husina was married to Nazar Hussain appellant and in exchange Nazar Hussain's sister Mst. Siani was married to Imam Bakhsh, brother of the complainant and due to strained relations about 3 months earlier at the Dera of Malik Qadir Bakhsh divorces were made. Nazar Hussain, Khadim Hussain, Amir Bakhsh and Ghulam Rasool alias Kalu had a grievance against Saeed Ahmad deceased due to this estrangement. The complainant on the day of occurrence alongwith his deceased uncle Saeed Ahmad, sister Mst. Husina (P.W.8) and Mst. Sughran, paternal aunt (P.W.7) were collecting cotton sticks from the field at about 2-00 p.m. And were at a distance of one acre from the house of Amir Bakhsh, appellant Amir Bakhsh appellant armed with Dang, Ghulam Rasool and Khadim Hussain appellants armed with hatchets and Nazar Hussain appellant armed with Dang reached and stated that .They would teach a lesson of getting divorce. Amir Bakhsh appellant inflicted Dang blow to Saeed Ahmad, who retreated which struck the ground and was broken. Saeed Ahmad deceased caught hold of Amir Bakhsh. Appellant Nazar Hussain inflicted Dang blow on the head of the deceased, who fell down alongwith Amir Bakhsh appellant. Ghulam Rasool alias Kalu appellant inflicted hatchet blow near the left wrist joint of the deceased and also on the back of Amir Bakhsh appellant. The second blow was given by Khadim Hussain appellant which had hit Amir Bakhsh appellant as the deceased was lying underneath him and the injury was inflictedon the left leg of Amir Bakhsh appellant. The third blow was given by Ghulam Rasool alias Kalu on the ankle joint, of the left leg of the deceased. Due to receipt of injuries Amir Bakhsh appellant was released from the clasp of Saeed Ahmad deceased. Thereafter, Ghulam Rasool alias Kalu inflicted blow on the right ankle of the deceased. Khadim Hussain appellant inflicted hatchet blow on the right knee of the deceased on the lateral part. Nazar Hussain appellant gave Dang blow on the right thigh of the deceased. Due to fear the complainant retreated, on which his sister Mst. Husina (P.W.8) and paternal aunt Mst. Sughran (P.W.7) forwarded. Nazar Hussain inflicted Dang blow on P.W.8 Mst.
Husina which hit on her left arm and back. Ghulam Rasool alias Kalu inflicted hatchet blow on the dorsal of her left hand. Mst. Sughran was given hatchet blow from the wrong side on her right hand by Khadim Hussain. On hue and cry P.W. Ghulam Hussain (not produced) reached. While raising Lalkara the appellants escaped. The deceased succumbed to his injuries at the spot. Leaving behind Ghulam Yasin P.W. (given-up), P.W.7 and P.W. 8 to guard the dead body the complainant reached the police station and lodged the F.I.R.
3. P.W.14 Muhammad Ashraf S.H.O. Reached the spot, collected bloodstained earth vide memo.
Exh.PJ and also secured broken Dang P.1 vide memo. Exh.PK. He prepared injury statement Exh.PE and inquest report Exh.PF of the deceased and despatched the dead body to the mortuary. He arrested the accused on 22-12-1988 and from the person of Khadim Hussain he secured blood- stained shirt P.6 vide memo. Exh.PM. He also led to the recovery of blood-stained hatchet P.9 from the house of Amir Hussain appellant which was secured vide memo. Exh.PP. Ghulam Rasool alias Kalu appellant led to the recovery of hatchet P.8 (blood-stained) from his own house which was secured vide memo. Exh.PO. The report of the Chemical Examiner and that of the Serologist Exhs.PR and PS in respect of hatched P.8, hatchet P.9, shirt P.7 and blood-stained earth were positive.
4. The appellants were challaned and sent up for trial. They were charged under sections 302/34, 307/34 and 307/34, P.P.C., to which they denied and claimed trial.
5. The prosecution examined 14 P.Ws. In all to substantiate its case. P.W.1 Dr. Tasnim Ashraf on 22- 12-1988 at 8-15 a.m. Medically examined Mst. Sughran (P.W.7) and found the following injury on her person:---
(1) An abrasion 1 c.m. x 1/2 c.m. With swelling area about 4 c.m. x 6 c.m. On the radial aspect of right fore-arm. The injury was simple in nature. Caused with blunt weapon and probable duration was about 18 hours.
' On the same date, the same Doctor medically examined Mst. Husina Mai (P.W.8) and found the following injuries on her person:---
(1) A lacerated wound about 2 c.m. x 1/3 c.m. x skin deep on the back of left palm.
(2) A contusion mark 6 c.m. x 1-1/2 c.m. On the left fore-arm.
(3) Complaint of pain on the back.
' All the injuries were caused by blunt weapon and were simple in nature. Probable duration of injuries was about 18 hours. Exhs.PA and PB are carbon copies of M.L.Rs, of Mst. Sughra and Mst.
Husina.
' P.W.2 Dr. Muhammad Habibur Rehman on 22-12-1988 medically examined Amir Bakhsh appellant, and found the following injuries on his person:---
(1) An incised wound 4 c.m. x 1-1/2 x 1/2 c.m. On the left calf below left knee joint (front side).
(2) An incised wound 2 c.m. x 3/4 c.m. x 1 c.m. On the left calf (inner side) in the middle.
(3) An incised wound 3 c.m. x 1 c.m. x 1 c.m. In the middle of lower lumber region.
' All the injuries were by sharp-edged weapons and were declared simple in nature. Duration was about 21 hours. Exh.PC is the carbon copy of the M.L.R.
' P.W.3 Dr. Amir Hussain Laghari on 22-12-1988 at about 8-30 a.m. Performed post-mortem examination on the dead body of Saeed Ahmad deceased and found the following injuries on his person:-
(1) An incised wound on the top of frontal of skull measuring about 15 c.m. x 2 c.m. x bone deep, underneath the bone was fractured.
(2) An incised wound in front of left wrist joint, 13 c.m. x 3-1/2 c.m. x 3 c.m. Cutting the muscle and bone of wrist joint.
(3) An incised wound in front of lower one-third of left leg, 12 c.m. x 2-1/2 c.m. x 3 c.m. Cutting the leg bone.
(4) An incised wound in front of right ankle joint 13 c.m. x 4 c.m. 3-1/2 cutting the muscle bone of joint.
(5) An incised wound on outer side of the right knee joint measuring 12 c.m. x 3 c.m. x 2 c.m.
(6) An incised wound on back of right elbow 5 x 2 x 2 c.m.
(7) A bruise in front of right thigh measuring 12 x 4 c.m.
(8) A bruise on left buttock 12 x 4 c.m.
' Injuries Nos.1, 2, 3, 4, 5 and 6 were caused by sharp-edged weapon and injuries Nos.7 and 8 by blunt weapon. He was of the opinion that the cause of death was shock and due to intra craneal haemorrhages caused by Injury No,1. Injury No,1 was sufficient to cause death in the ordinary course of life. All the injuries were anti-mortem in nature. The probable time which elapsed between injuries and death was within few minutes, and between death and post-mortem it was about 17 hours. Exh.PD is the carbon copy of post-mortem report. Exhs.PD/I and PD/II are the pictorial diagrams showing the side of injuries.
6. P.W.6 Ilahi Bakhsh, P.W.7 Mst. Sughran Mai and P.W.8 Mst. Husina Mai stated the ocular account of the occurrence. Recovery aspect of the case i,e, weapons of offence Dang P.7, hatchet P.8 and hatchet P.9, was stated by P.W.12 Goram Khan, P.W.13 Allah Bachaya and P.W.14 Muhammad Ashraf, S.H.O. P.W.14 Muhammad Ashraf S.H.O. Was the Investigating Officer. The other P.Ws. Are of formal nature.
7. Appellants Khadim Hussain, Ghulam Rasool alias Kalu and Nazar Hussain when examined under section 342, Cr.P.C. Denied the prosecution evidence against them and also negated tcie recovery of weapons of offence. Khadim Hussain appellant stated that he was innocent and was not present at the spot at the time of occurrence. Ghulam Rasool appellant and Nazar.; Hussain appellant stated that the P.Ws. Were relatives of the deceased and inimical towards them and were interested witnesses. They further stated that they were innocent and were not present at the spot at the time of occurrence. They neither made statements on oath as envisaged under section 340(2), Cr.P.C. Nor produced evidence in defence. Appellant Amir Bakhsh when examined under section 342, Cr.P.C. Denied the prosecution evidence against him and in answer to the question "have you anything else to say?" he replied:--- "I am innocent, in fact on the day of occurrence I was cutting my cotton sticks with my hatchet. A quarrel over my buffalo took place between me and Saeed Ahmad deceased, who (deceased) hurled abuses to me and he also caused injuries to me with his hatchet and in retaliation caused injuries with my hatchet from the sharp and blunt side of the hatchet in order to save my life.
Remaining accused and P.Ws. Were not present at the time of quarrel/incident."
' He denied the recovery. He also made statement under section 340(2), Cr.P.C. But had not produced evidence in defence. Appellant Amir Bakhsh when examined on oath as D.W.1 stated that he was not present during the fight. Mst. Husina and Mst. Siani were not related to him. He never made statement that he inflicted hatchet blow on Saeed Ahmad deceased. He did not pick up any quarrel on the ground of grazing the buffalo and he did not authorise Mr. A.R. Tayyab, Advocate to make confessional statement on his behalf.
8. The learned trial Court after evaluating evidence on record had convicted and sentenced the appellant.
9. I have heard the learned counsel for the parties and have perused the record with their assistance. The learned counsel for the appellants has vehemently contended that the case against the appellant is false, the oral testimony is not in consonance with the medical evidence and the recovery of hatchets P.8 and P.9 is fake. Lastly, it was argued that it was not a case under section 302, P.P.C.
10. The ocular account has been furnished on record by the statements of P.W.6 Ilahi Bakhsh complainant, injured P.W.7 Mst. Sughran and injured P.W.8 Mst. Husina Mai. P.W.6 Ilahi Bakhsh is the nephew of the deceased, whereas P.W.7 Mst. Sughran is widow of the deceased while P.W.8 Mst.
Husina Mai is the niece of the deceased. Ghulam Yasin P.W. Was given up by the prosecution. The eye-witnesses P.Ws. 6, 7 and 8 have unanimously stated that Nazar Hussain appellant had given Dang blow on the head of the deceased, but no blunt weapon injury was found by the Doctor who conducted autopsy on the dead body of the deceased. The injury on the head was an incised wound.
11. The injuries as stated by the eye-witnesses on the person of Amir Bakhsh appellant could not be caused in the manner as ascribed by them. Amir Bakhsh appellant at the time of his arrest stated before P.W.14 Muhammad Ashraf S.H.O. That he had caused injuries to the deceased due to an altercation when deceased's buffalo entered his field. He also stated so in answer to a question in his statement made under section 342, Cr.P.C., but surprisingly when he made statement on oath under section 340(2), Cr.P.C. He made a contradictory statement and stated that he was not present during the fight and he had never made statement that he inflicted hatchet blows on Saeed Ahmad deceased and moreover he did not pick up any quarrel on the ground of grazing his buffalo.
12. The statements of the eye-witnesses are not in consonance with the medical evidence furnished on record by the statement of Dr. Amir Hussain Laghari (P.W.3) who conducted autopsy on the dead body of the deceased. Amir Bakhsh appellant made contradictory statements and raised different pleas in his statements before the police, before the trial Court under section 342, Cr.P.C. And section 340(2), Cr.P.C. The Court, in the circumstances, is left with no option but to draw its own conclusion.
13. No doubt there was a grievance between the parties due to divorces arranged three months earlier to the present occurrence and during the said three months no untoward incident had happened, although both the parties were residents of the same area. The genesis of the occurrence is shrouded in mystery. It can .Be visualised that both the parties confronted with each other and for the reasons best known to them, the injuries were inflicted to Amir Bakhsh appellant by the complainant party, and to the deceased and P.Ws. By the appellants. There is no blunt weapon injury on the head of the deceased as ascribed to Nazar Hussain appellant. Khadim Hussain and Ghulam Rasool alias Kalu appellants were stated to be armed with hatchets and P.W.3 Dr. Amir Hussain Laghari had found six incised wounds on the person of the deceased, and they have been specifically attributed except injury No,1. Nothing has been brought on record i,e, who had caused the said injury although Khadim Hussain and Ghulam Rasool were armed with hatchets. Nazar Hussain appellant was also stated to have caused blunt weapon injury No,7 on the right thigh and injury No,8 on the left buttock was not specifically stated i,e, by whom the same was caused. Nazar Hussain appellant, was also stated to have caused Dang blows to P.W.7 Mst.
Sughran and P.W.8 Mst. Husina. Khadim Hussain appellant was stated to have caused hatchet blow from the wrong side on the right hand of P.W.7 Mst. Sughran. It is apparent that appellant Amir Bakhsh had received injuries during the occurrence as three incised wounds were caused on his person and he was arrested next day and was got medically examined by the police. The way the eye-witnesses had stated that Amir Bakhsh received injuries, was not possible in that situation.
Nothing was brought on record that who had caused the fatal injury to the deceased, although appellant Khadim Hussain and Ghulam Rasool alias Kalu were armed with hatchets. P.W.7 Mst.
Sughran and P.W.8 Mst. Husina Mai had intervened to rescue the deceased and they received injuries.
14. The occurrence took place suddenly. Khadim Hussain and Ghulam Rasool alias Kalu appellants though had inflicted injuries, but had no intention to cause death of the deceased and none of the eye-witnesses specifically stated that who amongst both of them had caused fatal injury to the deceased. Nazar Hussain appellant had inflicted simple injuries to Saeed Ahmad deceased and Mst. Husina (P.W.8) Khadim Hussain appellant is stated to have caused blow from the wrong side of the hatchet to Mst. Sughran (P.W.7). Amir Bakhsh appellant had caused neither any injury to the deceased nor to any of the P.Ws.
15. For the foregoing reasons I am of the view that Khadim Hussain and Ghulam Rasool alias Kalu appellants had committed an offence punishable under section 304, Part II read with section 34, P.P.C. While Nazar Hussain appellant had committed an offence punishable under section 323, P.P.C. For causing simple injury to the deceased as well as to P.W.8. Amir Bakhsh appellant had not caused any injury to the deceased and the P.Ws.He is given the benefit of doubt and acquitted of the charge. He is present on bail, his bail bonds are discharged. Khadim Hussain and Ghulam Rasool alias Kalu appellants are convicted under section 304, Part II read with section 34, P.P.C. And sentenced to undergo 8 years' R.I. Each, and a fine of Rs,20,000 each. In case of default in its payment, they shall suffer one year R.I. Each. The fine, if realized, 75 per cent. Of the same shall be paid to the legal heirs of the deceased. They shall also be extended the benefit of section 382-B, Cr.P.C. Nazar Hussain appellant is convicted under section 323, P.P.C. On two counts to undergo one year R.I. On each count and a fine of Rs,1,000 on each count, which, if realized, shall be paid to the injured P.Ws. In equal shares. Nazar Hussain appellant remained in jail for a period of about 3 years and 10 months when his sentence was suspended by this Court. He has already suffered his sentence. He shall deposit the amount of fine of Rs,2,000 in the trial Court within one week and in default whereof he shall suffer one month R.I. On each count. He is on bail, his bail bonds are discharged.
16. It is pertinent to mention here that the learned Additional Sessions Judge had convicted and sentenced Khadim Hussain, Ghulam Rasool and Nazar Hussain appellants under section 302/34, P.P.C. To transportation for life and no sentence of transportation for life is provided under section 302, P.P.C.
17. With the above modification in the matter of sentence, this appeal is dismissed. The connected Criminal Appeal No,64 of 1991/BWP is accepted in the above terms.