' Peer Bakhsh son of Abdul Ghafoor, Muhammad Shafi son of Abdul Karim, Muhammad Din son of Abdul Karim, Abdul Samad son of Rashid Ahmad, Abdul Sattar son of Naseer Khan, Faqir Bakhsh son of All Khan, Haji Muhammad Siddique son of All Khan, Hazoor Bakhsh son of All Khan, Rahim Khan son of Naseer Khan, Rashid Ahmad son of Abdul Malik, Bashir Ahmad son of All Khan and Faiz Bakhsh son of Abdul Karim were tried by the learned Additional Sessions Judge, Rahimyar Khan for the murder of Allah Wasaya and murderous assault on P.W.1 Allah Jiwaya and P.W.2 Noor Ahmad, who vide his impugned judgment dated 20-2-1991 convicted and sentenced Peer Bakhsh, Muhammad Shafi, Muhammad Din, Abdul Samad, Abdul Sattar, Faqir Bakhsh, Haji Muhammad Siddique and Hazoor Bakhsh under section 148, P.P.C. To undergo 2 years' R.I. Each, under section 302/149, P.P.C. For the murder of Allah Wasaya to undergo imprisonment for life each, and a fine of Rs,10,000 each, in default whereof to suffer further R.I. For 2 years each and the fine, if realized, half of it was directed to be paid as compensation to the legal heirs of the deceased; under sections 307/149, P.P.C. For causing injuries to Allah Jiwaya (P.W.1) to undergo 5 years' R.I. Each alongwith a fine of Rs,5,000 each, in default whereof to suffer further R.I. For one year each, and the fine, if realized, half of it was directed to be paid as compensation to P.W.1 Allah Jiwaya; and under section 325/149, P.P.C. To undergo 3 years' R.I. Each and a fine of Rs,2,000 each, in default whereof to suffer further R.I. For six months each. The amount of fine, if recovered, fifty per cent of it was directed to be paid to P.W.2 Noor Ahmad injured. All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended to the appellants. The co-accused Rahim Khan, Rashid Ahmad, Bashir Ahmad and Faiz Bakhsh were acquitted of the charge. Appellant Abdul Sattar son of Naseer Khan has since died and the appeal qua him is abated. Criminal Appeal No,20 of 1991/BWP, Criminal Appeal No,23 of 1991/BWP, Criminal Revision No,12 of 1991/BWP and Criminal Revision No,100 of 1991/BWP arise out of the same impugned judgment and all these shall be disposed of together by this judgment.
2. The prosecution case in brief is that P.W.1 Allah Jiwaya on 6-11-1988 at 11-45 a.m. Made his statement Exh.PA before P.W.11 Allah Rakha, A.S.I. At Civil Hospital, Khanpur to the effect that he was resident of Kotla Moaziz Din and was a cultivator. On 6-11-1988 at about 9/10-00 a.m. He was busy in plucking of the cotton near his house, when Rahim Khan (acquitted co-accused) armed with Soti, Peer Bakhsh appellant armed with hatchet, Rashid Ahmad (acquitted co-accused) armed with Soti, Abdul Samad armed with Soti, Bashir Ahmad (acquitted co-accused) armed with Soti, Hazoor Bakhsh appellant armed with Soti, Faqir Bakhsh appellant armed with hatchet, Muhammad Din and Muhammad Shall appellants armed with Sotis, and Faiz Bakhsh (acquitted co-accused) armed with the pistol, all Khushk by caste, residents of Mauza Kotla Moaziz Din reached and were forcibly taking away Mst. Asho Mai daughter of Abdul Razzaq, who was engaged with the complainant but was not married so far, while caught her hold from the arm. Mst. Asho Mai (P.W.5) raised hue and cry. P.W.1 Allah Jiwaya complainant alongwith P.W.2 Noor Ahmad and deceased Allah Wasaya after hearing the commotion reached the spot. Faiz Bakhsh (acquitted co-accused) raised Lalkara that if they would come near, they would be killed and fired with the pistol on them, but they were saved. The complainant alongwith P.W.2 Noor Ahmad and deceased Allah Wasaya tried to rescue Mst. Asho Mai, on which Pees Bakhsh appellant inflicted hatchet blow on the right side of head of Allah Wasaya. Rahim Khan, Rashid Ahmad (acquitted co-accused) and Abdul Samad appellant started injuring Allah Wasaya deceased. Bashir Ahmad (acquitted co-accused), Haji Muhammad Siddique, Hazoor Bakhsh and Faqir Baldish appellants injured Noor Ahmad (P.W.2) with the Sotis and hatchet. Rahim Khan (acquitted co-accused) inflicted injuries on his head.
Muhammad Din, Muhammad Shafi appellants, Abdul Sattar (since dead) started giving Soti blows to the complainant which hit on his head and other parts of the body. Meanwhile on the hue and cry of the P.Ws., Ghulam Qadir, Hussain Bakhsh and Ashiq Khan, caste Khushk reached, who while witnessing the occurrence rescued the complainant and his brother Allah Wasaya deceased. The motive behind was that Mst. Asho Mai was engaged with the complainant and the accused had a grievance and earlier to the present occurrence due to this grudge, litigation was going on and on the day of occurrence the accused after making mutual consultation had made murderous assault on the complainant and his brothers Noor Ahmad (P.W.2) and Allah Wasaya deceased, and if the P.Ws. Had not arrived, the accused would have murdered them. P.W.11 Allah Rakhia A.S.I.
Sent the statement Exh.PA to the police station, where formal F.I.R. Exh.PA/1 was recorded by P.W.10.
Muhammad Sharif, A.S.I. Under section 148/149/307, P.P.C. The injured succumbed to his injuries in the hospital and the offence under section 302, P.P.C. Was added.
3. The appellants alongwith the acquitted co-accused were challaned and sent up for trial. Charge under sections 148, 302/149, 307/149 and 325/149, P.P.C. Was framed against the accused, to which they denied and claimed trial. The prosecution examined 14 P.Ws. In all to substantiate its case.
4. The appellants when examined under section 342, Cr.P.C. Denied the prosecution evidence against them and also the recovery of incriminating articles at their instance. Peer Baldish appellant when examined under section 342, Cr.P.C. Denied the prosecution evidence against him and also the recovery of hatchet P.4. In answer to a question "Why this case against you and why the P.Ws. Have deposed against you?", he replied:--- "I am totally innocent. The police has twisted the story and in connivance with the complainant party by concealing the actual facts. On the day of occurrence Shabbir Ahmad brother of Allah Jiwaya complainant was stealing away cotton crop of Rahim Khan accused from his land. Shabbir Ahmad was caught red-handed by us and was being taken away to the police station alongwith stolen cotton. At that time Allah Jiwaya, Noor Ahmad and Allah Wasaya reached there and tried to forcibly get released Shabbir Ahmad from lawful apprehension. As a result of which hot words and abuses were exchanged when all of a sudden an altercation took place between us and the complainant party, in which they received injuries. Rahim Khan, Rasheed, Faqir Bakhsh, Haji Siddique and Bashir Ahmad, my co-accused were not present there at the spot during the whole of the occurrence."
' He produced D.W.1 Mian Mahboob Hassan Maneka in his defence. Appellants Muhammad Shafi, Muhammad Din, Abdul Samad had made the same statement as that of Peer Bakhsh and had denied the recovery of incriminating articles. Appellants Faqir Bakhsh, Haji Muhammad Siddique and Hazoor Baldish also adopted the statement of Peer Bakhsh and denied the recovery of incriminating articles at their instance. D.W.1 Mian Mahboob Hassan Maneka, Assistant Director, F.IA.
Stated that in November, 1988, he was posted as D.S.P./S.D.P.O., Khanpur. On 28-11-1988, he partly investigated this case and during his investigation on the said date Rahim Khan, Rashid Ahmad and Bashir Ahmad (acquitted co-accused) were found innocent in this case on the basis of the statements of defence witnesses produced by the said accused. The learned trial Court found the appellants guilty, and convicted and sentenced them.
5. I have heard the learned counsel for the parties at length and have perused the record. The prosecution case consists of motive, ocular account, medical evidence and recoveries.
6. The motive behind the occurrence was stated by P.W.1 Allah Jiwaya complainant in his statement Exh.PA on the basis of which formal F.I.R. Exh.PA/1 was recorded i,e, P.W.5 Mst. Asho Mai was engaged with the complainant and the accused had a grudge and earlier to the present occurrence, there was litigation between the parties. P.W.1 Allah Jiwaya also stated the motive behind the occurrence in the trial Court that Mst. Asho Mai was engaged with him by her parents, but Peer Bakhsh appellant wanted to contract marriage with her and due to this grievance all the accused tried to abduct Mst. Asho Mai and for about 3/4 months earlier to the present incident Mst.
Asho Mai was residing in his house. P.W.2 Noor Ahmad stated that Ms* Asho Mai was engaged with P.W.1 Allah Jiwaya two days prior to the occurrence and due to that grudge the occurrence took place. P.W.5 Mst. Asho Mai corroborated the statement of P.W.1. She also stated that she contracted marriage after the occurrence. It was not stated by P.W.1 Allah Jiwaya in the F.I.R. Exh.PA/1 that Peer Bakhsh appellant wanted to marry Mst. Asho Mai. The accused had no grievance against the deceased as he was not engaged with Mst. Asho Mai. Peer Bakhsh appellant was already married and had two children. The niece of Rahim Khan (acquitted co-accused) was already married with Peer Bakhsh appellant and how he could think of the abduction of Mst. Asho Mai alongwith him. It has been stated in F.I.R. Exh.PA/1 and also by P.Ws.1, 2 and 5 that 12 accused persons, two of them armed with hatchets, nine armed with Sotis and one with pistol, reached to abduct P.W.5 Mst. Asho Mai, who was dragged on hard substance to a distance of 4 Kanals. Neither her clothes were torn, nor she received bruises (dragging marks) on her body. Even her bangles were not broken. The house of P.W.5 Mst. Asho Mai is at a distance of 10/12 acres from the place of occurrence, but she was stated to be living in the house of the complainant for 3/4 months earlier to the present occurrence. The accused were alleged to have reached to abduct P.W.5 Mst. Asho Mai, but they left her behind and escaped. P.W.5 was not medically examined. In the circumstances I hold that, the motive behind the occurrence has not been proved on record.
7. The ocular account has been stated by P.Ws. 1, 2 and 5. P.W.1 Allah Jiwaya narrated the facts mentioned by him in his statement Exh.PA, on the basis of which F.I.R. Exh.PA/1 was recorded, and had stated that Peer Bakhsb appellant inflicted hatchet blow on the head of the deceased Allah Wasaya whereas Rahim Khan, Rashid Ahmad (acquitted co-accused) and Abdul Samad appellant had given Soti blows to the deceased. Bashir Ahmad (acquitted co-accused) alongwith Haji Muhammad Siddique and Hazoor Bakhsh had given Soti blows to Noor Ahmad (P.W.2) whereas Faqir Bakhsh appellant is alleged to have caused hatchet blow on the head of P.W.2 Noor Ahmad.
Muhammad Din, Muhammad Shafi appellants alongwith Abdul Sattar appellant (since died) had given Soti blows to Allah Jiwaya (P.W.1) which is not mentioned in the F.I.R. Faiz Bakhsh (acquitted co-accused) had a pistol. He fired but none was injured. P.Ws.1, 2 and 5 corroborated each other and made consistent statements and had stated the ocular account. P.W.1 Allah Jiwaya stated that Faqir Bakhsh had given hatchet blow to P.W.2 Noor Ahmad, which was an improvement.
8. Medical account was furnished on record by the statement of P.W.8 Dr. Muhammad Rafi Shahid who had medically examined Allah Wasaya deceased in injured condition on 6-11-1988 and had found the following injuries on his person:---
(1) An incised wound 8 c.m. x 1 c.m. x bone deep on the right side of the head with profuse bleeding.
The concavity of C-shaped wound was towards medial side. X-ray skull A. P/lateral views showed fracture of the skull on the right side (X-Ray No,655, 656 dated 6-11-1988).
(2) An abrasion 1 c.m. In length on dorsal aspect of right index fmger. The whole of the finger was contused and swollen. X-ray right hand vide No,657 dated 6-11-1988 shows no bony lesion.
(3) Contused swelling on dorsum of left hand more marked on medial aspect. X-ray left hand shows fracture of the proximal phalynx of left little finger (X-ray No,658 dated 6-11-1988).
' In his opinion injuries Nos.1 and 3 were grievous and dangerous to life. Injury No,2 was simple.
' On the same day, the same Doctor examined Allah Jiwaya (P.W.1) and found the following injuries on his person:- M An incised wound 6 c.m. x 1 c.m. x bone deep on the right side of head in oblique direction.
(2) Contused swelling on upper part of right side of chest above and medial to the nipple. The areas was tender to culpate.
(3) Contusion 9 c.m. x 3 c.m. On posterior aspect of right shoulder.
(4) A contusion 6 c.m. x 3 c.m. On the left scapular region.
(5) 'Contusion 15 c.m. x (sic) c.m. On the right side of back of chest.
(6) ' Contused swelling 4 c.m. x 3 c.m. On the dorsum of right hand. The area was tender on palpaction. Injuries Nos. 1, 2, 6 were kept under observation and rest of the injuries were declared simple. In the fmal opinion injury No,1 was declared as grievous as there was a fracture of skull, and vide X-ray Nos. 659 and 660, dated 6-11-1988 injuries Nps. 2 and 6 were declared simple as no bony lesion was seen in X-ray No,661 to 663.
' On the same day, P.W.8 also medically examined P.W.2 Noor Ahmad and found the following injuries on his person:---
(1) An incised wound 6.5 c.m. x 0.5 c.m. x bone deep on the left side of the head.
(2) Contused swelling on the dorsum of left hand. The area was extremely tendered on calpation.
(3) Contused swelling covering whole of the dorsum aspect of upper half of the right forearm.
(4) A contusion 11 c.m. x 2 c.m. On posterior abdominal wall in transverse direction on right side.
(5) A contusion 5 c.m. x 2 c.m. On the top of right shoulder.
(6) A contusion 9 c.m. x 2 c.m. On the right side of back.
' Injury No,1 was caused by sharp weapon and rest of the injuries were by blunt weapon. On final opinion injury No,2 was declared grievous as there was fracture of the fourth metacarpal of left hand in X-ray No,666, dated 6-11-1988. Rest of the injuries were declared simple.
9. P.W.9 Dr. Muhammad Iqbal on 7-11-1988 at 8-00 a.m. Conducted post-mortem examination on the dead body of Allah Wasaya and found the following injuries:---
(1) An incised C-shape bone 8 c.m. Long (stitched) on right side of head. The contavity of C) towards medial side.
(2) An abrasion 1 c.m. In length on dorsal aspect of right index finger. The whole finger is contused and swollen.
(3) Contused swollen on dorsum of left hand.
' In his opinion the death occurred due to head injury resulting haemorred and brain damage caused by injury No,1 which was sufficient enough to cause death in the ordinary course of life. All the injuries were ante-mortem. Injury No,1 was caused by sharp weapon and injuries Nos. 2 and 3 by blunt weapon. The probable duration between injuries and death was twelve to fourteen hours and between death and post-mortem eleven hours and forty minutes.
10. Deceased Allah Wasaya had received three injuries, P.W.1 Allah Jiwaya had received 6 injuries and P.W.2 Noor Ahmad had also received 6 injuries. The injuries on the deceased were attributed to four accused namely, Peer Bakhsh, Rashid Ahmad, Rahim Khan and Abdul Samad. P.W.1 Allah Jiwaya had received 6 injuries, which were attributed to Bashir Ahmad, Muhammad Din, Muhammad Shafi accused and Abdul Sattar (since died), whereas P.W.2 Noor Ahmad is stated to have received 6 injuries at the hands of Bashir Ahmad (acquitted co-accused), Haji Muhammad Siddique, Hazoor Bakhsh and Faqir Bakhsh appellants. The deceased and P.Ws.1 and 2 are stated to have been given injuries by the accused for 7/8 minutes. The medical aspect of the case furnished on record by the statements of P.Ws. 8 and 9 is not in consonance with the ocular account stated by P.Ws. 1, 2 and 5.
11. The recovery aspect of the case was not believed by the trial Court and was rightly discarded.
The accused have raised specific plea that acquitted co-accused Rahim Khan, Rashid Ahmad, Bashir Ahmad, Faqir Bakhsh and Haji Muhammad Siddique were not present at the spot and the appellants had apprehended Shabbir Ahmad, brother of the deceased while plucking and stealing cotton from their fields and they were taking him to the police station and on the way the complainant party met and while they forcibly got released, said Bashir Ahmad appellant had inflicted injuries to the deceased and the P.Ws. It is pertinent to mention here that the accused had not appeared voluntarily before the police and their arrest is shown on 22-11-1988 and 25-11-1988 and on that day they had made statements that the acquitted co-accused alongwith Faqir Bakhsh, Haji Muhammad Siddique are not present and they had made statement in line with the cross-examination of the P.Ws. And the plea taken by them. They had not raised the plea at the earliest. Moreover, the occurrence is stated to have taken place in the fields of the complainant party and the accused had also themselves stated that the accused party was also armed. The plea raised by the accused is not spelt out by the evidence on record and the circumstances appearing in the case. It is apparent from the evidence on record that the complainant party had exaggerated the number of accused and acquitted co-accused Rashid Ahmad, Rahim Khan and Bashir Ahmad were found innocent and placed in column No,2 of challan by the police. Faiz Bakhsh accused was also acquitted as he was stated to have not injured any person with the pistol used by him in the commission of offence. No empty was recovered from the locale. P.Ws. 1 and 2 are closely related to the deceased i,e, real brothers whereas P.W.5 is stated to be engaged with P.W.1 and now she has married after the occurrence with him.
12. The appellants are stated to have reached to abduct P.W.5 Mst. Asho Mai who was stated to be engaged with P.W.1 Allah Jiwaya and there was no motive whatsoever against the deceased. The parties were locked in litigation. The motive aspect has not been believed by this Court. The ocular account is not in consonance with the medical evidence. The recovery has been disbelieved. The plea raised by the appellant has not been substantiated. In the circumstances, the Court is left with no option but to draw its own conclusion.
13. There was no pre-concert amongst the accused. The immediate cause resulted in the commission of the occurrence is shrouded in mystery. Peer Bakhsh appellant had inflicted one hatchet blow on the head of the deceased. He had not repeated the injury. He had not even caused any injury to any of c the P.Ws. It was alleged that the appellant Peer Bakhsh had grievance against P.W.1 Allah Jiwaya, but he had not caused any injury to him. Allah Wasaya deceased received three injuries at the hands of four accused. P.W.1 Allah Jiwaya received six injuries at the hands of four accused, whereas P.W.2 Noor . Ahmad received six injuries at the hands of. Four accused. Rahim Khan appellant is stated to have caused injury to P.W.1 with the hatchet, which was declared grievous, but the same is not mentioned in the F.I.R. Exh.PA./1. The deceased, P.W.1 and P.W.2 were at the mercy of the appellants and they were given 3, 6 and 6 injuries respectively and nobody could stop them from giving much more injuries to them. Peer Bakhsh appellant is stated to have given one fatal injury on the head of the deceased and the three co-accused consciously avoided giving blows on vital parts of the deceased. The other co-accused had no common intention with their co-accused and could not be liable for his act. The accused/appellants in the circumstances, shall be liable for their individual acts.
14. Pursuant to the above discussion, the conviction and sentence of the appellants under sections 148 and 302/149, P.P.C. Are set aside excepting' appellant Peer Bakhsh, whose sentence is altered from sections 302/149 P.P.C. To section 304, Part I, P.P.C. And is sentenced to undergo imprisonment for 10 years' R.I. However, the sentence qua fine, a verbal notice for its enhancement has been given to the learned counsel for the appellants which has been accepted by him. The sentence of fine of Peer Bakhsh is enhanced to Rs,25,000, in default whereof he shall suffer further R.I. For one year. The fine, if realized, whole of it shall be paid to the legal heirs of the deceased. The conviction and sentence of appellants under section 307/149, P.P.C. For causing injuries to Allah Jiwaya (P.W.1) to undergo 5 years' R.I. Each alongwith a fine of Rs,5,000 each, in default whereof to suffer R.I. For one year each, and the fine, if realized, half of it as directed to be paid as compensation to P.W.1 is set aside, excepting Faqir Bakhsh appellant, whose sentence is altered to one under section 325, P.P.C.
And he is convicted and sentenced to undergo R.I. For the period already undergone by him and the sentence of fine of Rs,5,000 is maintained, in default whereof to suffer R.I. For 6 months. The fine, if realized half of it shall be paid to injured P.W.2. Noor Ahmad, Faqir Bakhsh, Haji Muhammad Siddique, Hazoor Bakhsh, Abdul Samad, Muhammad Din and Muhammad Shafi's conviction and sentence under section 325/149, P.P.C. To undergo 3 years' R.I. And a fine of Rs,5,000 each, in default whereof to suffer further R.I. For 6 months each, is altered to one under section 323, P.P.C. To one year R.I. Each and a fine of Rs,2,000 each, in default whereof to suffer 3 months' R.I. Each. The appellants shall be extended the benefit of section 382B, Cr.P.C. The appellants are in jail, who shall be informed. Connected Criminal Appeal No, 23/1991/BWP stands decided in the light of the above judgment. Criminal Revision No,12/1991/BWP and Criminal Revision No,100/1991/BWP have no merit and are dismissed.