MIAN ABDUL KHALIQ, J.---Talib Hussain (18 years) and Ghulam Sarwar (45 years) were tried by the learned Additional Sessions Judge, Rehimyar Khan for the murder of deceased Iqbar Hussain and causing injuries to Nazar Hussain (P.W.3) and Fazal Hussain (P.W.4); and vide his impugned judgment dated 23-5-1992, Talib Hussain appellant wan convicted and sentenced under section 302-A, P.P.C. To death as Qisas; tlpe co-accused Ghulam Sarwar was acquitted of the charge, and Talib Hussain and Ghulam Sarwar appellants were also convicted and sentenced under section 337-A(i), P.P.C. To Daman of Rs.2,000 on each count payable to each injured P.W. And Ta'zeer 2 years' R.I. Each on each count. They were also directed to serve simple imprisonment till the payment of Daman. The appellants have, come up in appeal against their conviction and sentence, whereas a reference has been sent by the trial Court under section 374, P.P.C. The criminal appeal and the murder reference arise out of the same judgment and shall be disposed of together by this judgment.
2. The facts of the prosecution case are that P.W.3 Nazar Hussain on 25-10-1990 at 8-00 p.m. At Civil Hospital Khan Baila made statement Exh.P.C. Before P.W.d Khurshid Alam, Inspector/SHO to the effect that he along with his deceased brother Iqbal Hussain after purchasing essential articles from the city at about 5-30 p.m. Reached their Basti on a motor-cycle. Iqbal Hussain deceased was parking his motor-cycle at the house of Sher Muhammad and complainant Nazar Hussain (P.W.3) went to his house on the Watt of the graveyard and had just reached his house from the back. He heard hue and cry of Iqbal Hussain deceased. The complainant's other brother Qari Fazal Hussain (P.W.4) who was present at the house along with the complainant went towards Iqbal Hussain deceased. P.W.4 Qari Fazal Hussain was ahead and P.W.3 Nazar Hussain complainant was following him, and they witnessed that Ghulam Sarwar appellant had caught hold of Iqbal Hussain and was beating him. Talib Hussain appellant had a Sairoo of cot in his hand, and he inflicted the same on the forehead of Iqbal Hussain deceased, who fell down. Qari Fazal Hussain (P.W.4) tried to rescue the deceased and Talib Hussain appellant also inflicted a Sairoo blow on his head. Ghulam Sarwar and Talib Hussain's father also threw brick bats on Qari Fazal Hussain (P.W.4). Meanwhile, Talib Hussain appellant inflicted Sairoo blow on the head of P.W.3 Nazar Hussain complainant.
Ghulam Sarwar appellant also threw brick bats on the feet and head of P.W.3. Meanwhile the women from the Basti reached and the appellants leaving behind them escaped.
3. The motive behind was that the complainant party had a dispute about the water with the appellants as well as a dispute had arisen on the passing from near their houses. Ghulam Sarwar and Talib Hussain appellants had attacked Iqbal Hussain and, the P.Ws. With the intention of murder. P.W.4 Qari Fatal Hussain and other residents of the Basti were carrying Iqbal Hussain to the Hospital Khan Baila, who succumbed to his injuries on the way. P.W.6 Khurshid Alain, Inspector/SHO recorded statement Exh.P.C. Of complainant Nazar Hussain (P.W.3) and sent the same to the police station, where on its basis formal F.LR. Exh.P.C./1 was registered.
4. The appellants were challaned and sent up for trial. A charge under sections 324/34 and 302/34, P.P.C. Was framed against the appellants, to which they denied and claimed trial.
5. The prosecution examined 7 P.Ws. In all to substantiate its case.
6. Appellant Talib Hussain in his statement under section 342, Cr.P.C. Pleaded not guilty to the charge and denied the prosecution evidence against him and also the recovery of Sairoo P.4 at his instance. When asked "have you to say anything else?", the appellant made the following statement:-- "On the day of occurrence, I was present in my home. On the alarm of my father, I immediately came out with a Sairoo and saw that Iqbal had made my father fall on the courtyard of our Dera and was strangulating him. Apprehending danger to life of my father and to defend him, I gave a Sairoo blow to Tqbal deceased. Had 1 not saved my father, he would have killed my father. My father was semi---unconscious due to strangulation. In the meanwhile Nazar Hussain and Fazal Hussain P.Ws. Armed with Sotis reached there and attacked upon me and injured me. I also injured them in self-defence. Upon our hue and cry, few ladies, Muhammad Qasim; Advocate, Sadiq and Ismail also reached the spot and saved us and put some water in the mouth of my father. I and my father appeared before the police on the very first day and were arrested by the police on that day, but police mala fidley did not get us medically examined. The police kept us under their illegal detention and showed our arrest when our injuries were healed. The prosecution story is wrong. I have defended the life of my father and also to save myself. I have committed no offence. I am innocent."
Appellant Ghulam Sarwar in his statement under section 342, Cr.P.C. Pleaded not guilty to the charge and denied the prosecution evidence against him. When asked "have you to say anything else?", the appellant replied as under.-- "On the day of occurrence, I was sitting in the courtyard of my Dera. Iqbal Hussain deceased passed through the courtyard of my Dera mocking at me. I stopped him. He started abusing me. I also abused him. He made me to fall on the ground and started giving me fist blows. When I raised hue and cry, he started to strangulate me with intention to kill me. Upon. My alarm my son Talib Hussain came over there and defended me. I was semi-unconscious. Malik Qasim, Advocate and others came there and put some water into my mouth. I and my son Talib Hussain were injured by the complainant party. We both appeared before police on the very first day, but police registered a case against us mala-fidley on wrong facts and did not get us, medically examined. I am innocent."
The appellants produced D.W.1 Malik Muhammad Qasim, Advocate who supported the plea raised by the appellants and had stated that at the relevant time he heard alarm from the Dera of Ghulam Sarwar and along with P.Ws. Rushed to the Dera of Ghulam Sarwar appellant. There were some ladies present there who were making a noise. When he reached the spot, he witnessed Iqbal Hussain deceased in injured condition and unconscious. Ghulam Sarwar appellant was also in injured condition and Qari Nazar Hussain (P.W.3) and Qari Fatal Hussain P.W.4 were having Sotis in their hands and Talib Hussain appellant was having a Sairoo in his hand and they were inflicting injuries to each other. He along with P.Ws. Separated them. Fatal Hussain and Nazar Hussain, P.Ws.4 and 3 were also injured. Talib Hussain appellant was also injured. He along with the P.Ws. Put water in the mouth of Ghulam Sarwar appellant. Thereafter, Ghulam Sarwar and Talib Hussain appellants went to their houses and Iqbal Hussain deceased was taken by Qari Fatal Hussain (P.W.4) and Nazar Hussain (P.W.3) towards their house. He stated the facts to the police on the next day of the occurrence and the appellants were under arrest at that time. The appellants did not make any statement on oath as envisaged under section 340(2), Cr.P.C.
7.After examining the evidence on record, the learned trial Court relied on the testimony of P.Ws.
And convicted and sentenced the appellants. The learned counsel for the appellants vehemently contended that the motive set up by the prosecution has not been proved on record. The ocular testimony furnished on record is not in consonance with the medical evidence and the recovery evidence had no corroborative value.
8. We have carefully considered the submissions made by the learned counsel for the parties in the light of the evidence available on record. The motive behind the occurrence has been furnished by the statement of P.W.3 Nazar Hussain complainant. The complainant narrated in his complaint Exh.P.C., on the basis of which formal F.LR. Exh.PC/1 was recorded. He stated that they had a dispute of water with the appellants as well as their passing from near the house of the appellants. P.W.3 Nazar Hussain also stated so in his statement before the trial Court. P.W.3 Nazar Hussain during cross---examination stated that the watercourse is lying in front of the house of the appellants, who did not allow the complainant party to take water from the watercourse. He had volunteered that the watercourse belonged to the Government and was sanctioned one. The appellants were not allowing them to irrigate their land from the said watercourse for a period of 2/3 months prior to the occurrence and he did not give any application to the Canal Authorities against the conduct of the appellants. He further stated that before the occurrence there was no dispute between them and the appellants and some persons came to congratulate Qari Fazal Hussain on the performance of his Hajj and the appellants stopped those persons from entering the house of Fatal Hussain, and on that an altercation took place between them and Ghulam Sarwar appellant and later threatened them that Ghulam Sarwar appellant would not allow them to irrigate their land from the watercourse and the appellants were not on visiting terms with them. The complainant party had not moved any application to the Canal Authorities that the appellants were not permitting them to use the canal water. The statement of P.W.3 Nazar Hussain complainant has not been corroborated by any other P.W. And even P.W.4, Qari Fatal Hussain real brother of P.W.3 Nazar Hussain stated nothing about the motive. In the circumstances, the motive behind the occurrence is not proved.
9. The eye-witness account has been furnished on record by the statements of P.W.3 Nazar Hussain complainant and P.W.4 Qari Fatal Hussain, real brothers of the deceased. P.W.3 narrated in Exh. PC on the basis of which formal F.LR. Exh. PC/1 was recorded when after hearing the alarm of Iqbal Hussain, he along with P.W.4 Qari Fatal Hussain rushed to the spot and witnessed Ghulam Sarwar appellant catching hold of Iqbal Hussain deceased and was belaboring him. Talib Hussain appellant gave a Sairoo blow on the head of the deceased, who fell on the ground. Qari Fatal Hussain(P.W.4) intervened when Talib Hussain appellant gave a blow with Sairoo on his head.
Ghulam Sarwar appellant also gave him injury with pacca brickbats. P.W.3 Nazar Hussain complainant intervened when Talib Hussain appellant inflicted him a Sairoo blow and likewise Ghulam Sarwar appellant with brick bat. P.W.4 Qari Fatal Hussain stated that be along with P.W.3 Nazar Hussain complainant after hearing the alarm of Iqbal Hussain deceased reached the place of occurrence, witnessed that Ghulam Sarwar appellant had caught hold of the deceased and was belaboring him and Talib Hussain appellant who was armed with a Sairoo caused Sairoo blow on the forehead of the deceased, who fell down on the ground, when P.W.4 Qari Fatal Hussain and P.W.3 Nazar Hussain complainant tried to intervene. Talib Hussain appellant extended Sairoo blows on the head and arm of P.W.4 Qari Fatal Hussain whereas Ghulam Sarwar appellant threw brick bats on him. Talib Hussain appellant also inflicted blow with the Sairoo on the head of P.W3 Nazar Hussain and Ghulam Sarwar appellant threw brickbats on P.W.3. P.Ws. 3 and 4 are the real brothers of the deceased and their statements cannot be relied upon if not corroborated by independent evidence.
10. The medical evidence on record has been furnished by the statement of P.W.8 Dr. Rehmatullah, who on 25-10-1990 conducted autopsy on the dead body of deceased Iqbal Hussain and found bruise 1 x 5 c.m. x 1/5 c.m. On right side of frontal side of head with swelling 3 c.m. x 3 c.m. Scalp was crushed and skull was fractured. Membrane and brain were ruptured and damaged. After external and internal examination of the dead body he opined that injury No.1 (head injury) was sufficient to cause death in the ordinary course of nature The injury was ante-mortem and caused by blunt weapon. The duration between death and injury was within one hour and time between death and post-mortem was 14/15 hours.
The same P.W. On 25-10-1990 at 9-00 p.m. Medically examined P.W.3 Nazar Hussain complainant and found the following injuries on his person:-- (1)Lacerated wound 2 x 5 c.m, x 5 c.m. x skin level on left side of scalp 7c.m. Away from left ear.
(2)Bruise 2 c.m, x 1 c.m. On right foot dorsum side, movements normal.
(3)Complains of pain on both buttocks.
Injuries Nos.2 and 3 were declared simple. As the injured was not agreed for X-ray, so injury No.1 was kept under observation and was declared as simple.
On the same day the same Doctor medically examined P.W.4 Qari Fazal Hussain and found the following injuries on his person:-- (1)Lacerated wound 2 c.m. x 3 c.m. Skin level on left side of scalp 6 c.m. Away from left ear.
Conscience level was normal. Injury. Was kept under observation. Advised X-ray scalp. A.P. Lateral view.
(2)Bruise 4 c.m. x 4 c.m. On right elbow joint, movement normal.
(3)Bruise 4 c.m. x 3 c.m. On left side of back. .
All the injuries were caused by blunt weapon. Injury No.1 was kept under observation as the injured was not agreed and declared as simple.
11. P.W.3 Nazar Hussain complainant stated that Talib Hussain appellant gave a blow on the head of the deceased with Sairoo, Talib Hussain appellant also caused a Sairoo blow on the head of P.W.4 Qari Fazal Hussain. Ghulam Sarwar appellant infected injury on P.W.3 Nazar Hussain complainant with pacca brick bats. P.W.3 had intervened when Talib Hussain appellant gave blow with Sairoo and likewise Ghulam Sarwar appellant with brickbats. P.W.4 Qari Fazal Hussain stated that Talib Hussain appellant had given Sairoo blow on the forehead of the deceased when P.W.4 along with P.W.3 intervened. Talib Hussain also gave Sairoo blow on P.W.4 Qari Fazal Hussain's head and arm etc. Ghulam Sarwar appellant threw brick bats on P.W.4 Qari Fazal Hussain. Talib Hussain appellant inflicted blow with the Sairoo on the head of P.W.3 Nazar Hussain and Ghulam Sarwar appellant also threw brickbats on P.W.3 Nazar Hussain complainant.
12. P.W.8 had medically examined Nazar Hussain (P.W.3) and Qari Fazal Hussain (P.W.4). Nazar Hussain was stated to have received injuries on his head and arm at the hand of Talib Hussain.
P.W.8 during cross-examination stated that the injuries on the person of P.W.3 Nazar Hussain and Q.W.4 Qari Fazal Hussain could be the result of infliction by Sod and he did not observe any brickbat injury on P.W.3 and P.W.4. P.W.3 Nazar Hussain complainant stated that he was given blows with the Sairoo and brick bats. P.W.4 Qari Fazal Hussain stated that he was given blows with Sairoo on his head and arms by Talib Hussain and Ghulam Sarwar appellant threw brickbats on him. Talib Hussain appellant inflicted blow on the head of Nazar Hussain complainant. Ghulam Sarwar appellant also threw brickbats on P.W.3 Nazar Hussain. The medical evidence furnished on record by the statement of P.W.8 Dr. Rehmatullah is not in consonance with the testimony of P.W3 and P.W.4.
13. The appellants were arrested by P.W.6 Khurshid Alam Inspector/S.H.O. On 13-11-1990 and on the same day Talib Hussain appellant was stated to have got recovered Sairoo P.4 lying in the room of his Dera which was secured vide memo. Fxh.PB by P.W.6 attested by P.W.1 Hafiz Mewa. Sairoo P.4 was not stained with blood and moreover it was recovered from the house of appellant Talib Hussain after 18 days of the occurrence. The recovery aspect is not proved on record.
14. Talib Hussain appellant raised a spec plea that apprehending danger to the life of his father and to defend himself he gave a Sairoo blow to Iqbal Hussain deceased, and meanwhile Nazar Hussain (P.W.3) and Qari Fazal Hussain (P.W.4) armed with Sotis reached and injured him. He also injured them in self-defence. D.W.1 Malik Muhammad Qasim, Advocate reached the spot. Talib Hussain appellant along with his father appeared before the police and the police did not get them medically examined, and kept them in illegal detention and showed their arrest when their injuries were healed. P.W.4 Qari Fazal Hussain stated that he was present with the deceased in the hospital and his statement was recorded at 9-00 a.m. Next morning, whereas P.W3 Nazar Hussain complainant stated that on 26-10-1990 he was medically examined at 1-00 p.m. Fazal Hussain (P.W.4) stated that he was medically examined on 26-10-1990 at 9-00 p.m. The appellants claimed that they were arrested on 25-10-1990 by the Investigating Officer (P.W.6), but their arrest was shown on 13-11-1990 when their injuries received at the hands of the complainant party were healed. The accused party was in possession of the place where the occurrence took place, as stated by P.W.S Saifullah Patwari. The place of occurrence is near the Khaal which is nearby at & distance of 2 Karams from the Dera of the accused. It has been brought on record that the complainant party had already been restrained from using the path belonging to the accused party for going to their house. There was another path which led to the house of the deceased, but the deceased had not used that path at the relevant time. P.Ws.3 and 4 are real brothers of the deceased and the injuries on their persons prove their presence at the spot, but it cannot be held that they stated the true facts of the case. The maxim "falus in uno falus in omnibus" has no universal application. The Court can sift the grain from the chaff and convict that accused whose guilt is established. Beyond any doubt and can acquit that whose involvement is not free from doubt. In the circumstances, we hold that the prosecution has failed to establish its case beyond doubt against Ghulam Sarwar appellant and giving him benefit of doubt we acquit him of the charge. He shall be released forthwith if not required in any other case.
15. The complainant as well as the accused party live in the same village. They had no previous enmity. The deceased had used the path in front of the Ehata of the accused/appellants from which he was earlier restrained and something must have had happened which resulted in the present occurrence. There was no premeditation and all happened on the spur of moment and what actually transpired immediately before the occurrence is shrouded in mystery. Appellant Talib Hussain gave one Sairoo blow on the head of the deceased and had not repeated the same.
He had no intention of causing death of the deceased. He neither intended to cause such bodily injury as was likely to cause death as well as had no knowledge that it was likely to cause death.
We are of the view that it was not a Qatl-e-Amd liable to Qisas anti accordingly we alter conviction of Talib Hussain appellant from under section 302, P.P.C. Liable to Qisas to section 302(c), P.P.C. And convict and sentence him to undergo 10 years' R.I. Moreover, the prosecution had succeeded in establishing and proving its case against Talib Hussain appellant under section 337-A(i) on two counts beyond doubt and his conviction and sentence on each count is maintained. However, the sentences awarded to appellant Talib Hussain shall run concurrently and he shall also be extended the benefit of section 382-B, Cr.P.C. The death sentence is not confirmed.