' KHALIL-UR-REHMAN RAMDAY, J.--- One Nazir Ahmad, his three sons, namely, Imdad, Ikram and Abid; his wife's brother, namely, Ghulam Rasool and a son of another sister of Ghulam Rasool, namely, Rafi were tried by a learned Additional Sessions Judge of Faisalabad for committing the murder of one Allah Yar and for having murderously assaulted and injured Bashir Ahmad, Akbar Ali, Aish Ali and Mst. Waziran Bibi. Through his judgment, dated 29-6-1991 the said learned trial Judge convicted only Imdad and Rafi under section 302/34, P.P.C. And out of them, punished Imdad with death but sentenced Rafi to suffer imprisonment for life. Each one of theese two was ordered to pay a fine of Rs,25,000 or to undergo two years' R.I. In default of payment of fine and each one of them was further directed to pay Rs,25,000 as compensation to the heirs of the deceased or to suffer six months' R.I. In default of payment of the said fine. The said Rafi was further convicted under section 307, P.P.C. For the injuries caused by him on the person of Mst. Waziran (given up) wherefor, he was punished with years' R.I. And a fine of Rs,10,000 or one year's R.I. In default of payment of fine. Each one of Nazir, Ikram, Ghulam Rasool and Abid was found guilty under section 323, P.P.C. For causing simple injuries on the person of Bashir P.W., Aish Ali (given up) and Akbar P.W.
Respectively and was awarded one year's R.I. For the said charge. All these convicts were, however, acquitted of the charge under section 148, P.P.C.
2. Murder Reference No,440 of 1991 seeks confirmation of the sentence of death awarded to Imdad convict while Criminal Appeal No,719 of 1991 filed by all the six convicts above-described impugns the above-noticed convictions and .Sentences recorded against each one of them. Both these matters are being disposed of together through this single judgment.
3. The occurrence in question had taken place on 7-11-1987 at about 5-00 p.m. Near the house of Ghulam Rasool appellant in the area of Chak No,651/2- G.B. About one mile from Police Station Lundianwala of District Faisalabad and had been reported at the said police station by Jahangir complainant at about 9-30 p.m. The same day.
4. Narrating the occurrence and the background leading thereto, Jahangir complainant had submitted that they were four brothers residing in a joint Ihata in Chak No,651/2-G.B. And that on the day of occurrence, his brother Bashir and the said Bashir's son, Aish were returning to their Ihata at about 5-00 p.m. And just as they reached in front of the door of the house of Ghulam Rasool accused, they found the said Ghulam Rasool standing there along with Nazir, Abid and Ikram while armed with Dangs. The complainant had further alleged that Ghulam Rasool accused raised a Lalkara at which, Nazir accused inflicted two Dang blows on the head of Bashir P.W. While Ikram accused dealt two Dang blows on the forehead of Aish Ali (given up). The complainant had further claimed that Abid and Ghulam Rasool then targeted Akbar P.W. And gave Dang blows on various parts of his body. He had further reported that in the meantime, Imdad and Rafi appellants also reached there after arming themselves with guns where after, Rafi fired a shot injuring Allah Yar and Mst. Waziran Bibi while Imdad fired a shot also at Allah Yar which proved fatal.
5. Disclosing the motive for the occurrence in question, the complainant had divulged that about seven months prior to the present occurrence, a fight had taken place between his nephew, namely, Muhammad Ashraf and Abid appellant as a result of which, a case under section 324, P.P.C. Was reported against the said Ashraf and that it was on account of this grievance that the appellant party had done the above-noticed damage.
6. Only blood-stained earth had been found at the place of occurrence which had been seized vide memo. Exh.P.B. During the course of further investigation, all the accused persons except Nazir were arrested on 22-11-1987 by Asghar Ali, S.-I./S.H.O., while Nazir appellant had been arrested on 12-12-1987. As a result of the interrogation, all these accused persons had allegedly led to the recovery of the weapons of offence allegedly carried and used by them at the time of occurrence.
7. Before noticing the defence version of the occurrence in question, it may be mentioned here that Jahangir complainant and Bashir injured (P.W.8) are the brothers of Allah Yar deceased. Aish Ali injured P.W. (given up) is a son while Mst. Waziran injured P.W. (given up) is the wife of the said Bashir P.W. Whereas, Akbar Ali injured (P.W.9) is the son of a sister of the deceased. The complainant party is related to the appellant party also inasmuch as, a sister of Ghulam Rasool appellant, namely, Mst. Naziran is the separated wife of Jahangir complainant while another sister of Ghulam Rasool appellant, namely, Mst. Sharifan is the wife of Nazir appellant.
8. Through the statements of the accused persons recorded under section 342, Cr.P.C. And from the suggestions made by the defence while cross-examining the prosecution witnesses, it further transpires that Jahangir complainant had three sons from Mst. Naziran, the said sister of Ghulam,Rasool appellant which said wife had been separated and as a result thereof, these three sons also lived separately from their father, namely, Jahangir complainant. One of these three sons is Muhammad Ali who was engaged by his maternal relatives to the daughter of Nazir appellant and it stands admitted on record that the marriage of this boy, namely Muhammad Ali with the said daughter of Nazir appellant finally took place some times after the present occurrence. The case of the appellants was that Jahangir complainant did not want his said son Muhammad Ali to marry the daughter of Nazir appellant and instead wanted him to marry a daughter of his brother; that on the day of occurrence, the family membered of Ghulam Rasool appellant and Nazir appellant had collected at the house of Ghulam Rasool appellant to fix the date of the marriage of the said Muhammad Ali with the daughter of Nazir appellant and it was at that juncture, that the complainant party feeling annoyed of this match, launched an attack on the complainant party inflicting injuries on the persons of Nazir appellant, Ikram appellant, Ghulam Rasool appellant, Abid appellant and on the person of Mst. Sharifan, the wife of Nazir appellant and that it was in the exercise of their right of self-defence that the appellant party retaliated which resulted injuries on the persons of the abovementioned P.Ws. And Allah Yar deceased. It may be mentioned here that Dr. Muhammad Afzal (P.W.5) was the one who besides having conducted the post-mortem examination of Allah Yar deceased and having medically examined the P.Ws., had also examined the abovementioned appellants and Mst. Sharifan. He had found five injuries on the person of Nazir appellant out of which, one was grievous; had detected six injuries on the person of Ikram appellant; had found two injuries and six injuries respectively on the persons of Ghulam Rasool and Abid appellants besides finding four injuries on the person of Mst. Sharifan out of which, one was grievous.
9. Relying upon the venue of occurrence which was in front of the house of Ghulam Rasool appellant as also on a total number of 23 injuries received by the members of the appellant party out of which, two -were grievous, it had been rather strenuously argued on behalf of the appellants that the damage done by the appellant party had been caused in defence of their persons.
10. It would thus be noticed that the two parties are not at variance with each other with respect to the time and place of occurrence. It is also not denied by the appellant party that the injuries caused on the persons of the members of the complainant party, including the deceased, had been caused by-the appellants or by the members of the appellant party. The only question which, thus, requires determination is the genesis of the occurrence i,e, whether the same had taken place in the manner alleged by the prosecution or whether it had got commenced in the manner claimed by the defence.
11. Although it was a witness of the prosecution itself, namely, Dr. Muhammad Afzal (P.W.5) who had deposed about the existence of the above-noticed 23 injuries on the persons of the appellants and on the person of the wife of Nazir appellant yet, the eye-witnesses had rather blatantly concealed and denied having caused injuries on the persons of/the members of the appellant party. The incident which has been pleaded by the prosecution as the motive for the present occurrence, had taken place about seven months prior to the present occurrence. The parties lived in the same village and there is no explanation on the record from the prosecution as to why the appellant party had suddenly remembered of this incident of motive on the day of the present occurrence and had decided to mount an assault in the broad daylight, in front of their own house and that also not on Ashraf who had allegedly assaulted Abid appellant in the incident of motive but on Bashir and Aish Ali. The motive becomes further doubtful in the absence of any claim by the prosecution that the said Ashraf was not available to the members of the appellant party who had consequently decided to wreak their vengeance on his relatives.
12. As against this, it stands admitted on record that a sister of Ghulam Rasool appellant was the estranged wife of Jahangir complainant and further that the three sons of Jahangir complainant from this wife Lived separately from their father in the area of Hujra Shah Muaqeem. It also stands admitted on record that one of these sons, namely, Muhammad Ali married a daughter of Nazir appellant, namely, Mst. Khudeja. In the circumstances, it is reasonably believable that a father would feel offended about his son being married off against his wishes and even without his consent or knowledge. This part of the defence plea thus inspires confidence.
13. This is, however, not believable that on account of this grouse, the members of the complainant party, knowing that a large number of persons had collected in the house of Ghulam Rasool appellant to fix the date of the above-mentioned marriage, would decide to launch a preconcerted attack on these persons in their house after arming themselves only with Dandas.
This part of the defence version thus, does not appear to be reasonable.
14. From the facts and circumstances which stand on record, what appears to us is, that aggrieved by the decision of the appellant party to marry a son of Jahangir complainant with the daughter of Nazir appellant, the complainant party had come to Ghulam Rasool appellant to voice their grievance and to persuade Ghulam Rasool appellant who was a maternal-uncle of the said boy and who had decided to marry him off to the daughter of another sister of his i,e, the daughter of Nazir appellant, against this marriage. It further appears to us that it was during the arguments on this issue that the matter flared up where after, both the parties got dragged into a fight with each other resulting in injuries on both the sides and it was during the course of this occurrence that Imdad appellant used the gun causing injuries on the complainant party, one of which proved fatal. Relying upon Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502, we find accordingly.
15. The result is that every member of the appellant party is consequently liable only to the extent of the damage done by him and no more. Preceding then to determine the guilt of each of the six appellants, we find that Rafi appellant had been saddled with a fire-arm injury on the right arm of Allah Yar deceased near his elbow and further fire-arm injuries on the person of Mst. Waziran Bibi.
This Mst. Waziran Bibi who is the wife of Bashir (P.W.8) elected not to enter the witness-box and no explanation exists on record for her said conduct. Consequently, Rafi appellant cannot be convicted for the injuries allegedly caused by him on the person of the said Mst. Waziran. Therefore, the conviction and sentences recorded against Rafi appellant under section 307, P.P.C. For launching a murderous assault on Mst. Waziran Bibi are set aside and he is acquitted of the said charge. An examination of the fire-arm injuries received by Allah Yar deceased reveals a definite possibility of a fire-arm injury caused on the outer side of his upper right arm being the result of the same shot which had caused injuries on an area of 21 c.m. x 12 c.m. On the lateral and backside of his trunk extending from his chest to his buttocks. The benefit of this possibility has to go to Rafi appellant. Thus, a doubt having emerged with regard to Rafi appellant having causecrany injury on the person of Allah Yar deceased, the conviction and sentences recorded against the said Rafi appellant under section 302/34, P.P.C. Are also set aside and he is resultantly acquitted of the said charge also. He shall, therefore, be set at liberty forthwith if not required to be detained in any other case.
16. Since we have found that the occurrence in question was not the result of any premeditation on the part of any one, including Imdad appellant, therefore, we do not confirm the sentence of death awarded to Imdad appellant and he is instead directed to suffer imprisonment for life under section 302, P.P.C. He shall be allowed the benefit of the provisions of section 382-B of the Cr.P.C.
17. Ikram appellant had been convicted under section 323, P.P.C. For having caused simple injuries on the person of Aish Ali. This Aish Ali was also given up at the trial and nothing had been brought on record by the prosecution that the non-appearance of Aish Ali at the trial was for reasons beyond his control. Consequently, the conviction and sentences recorded against Ikram appellant are also set aside and he is acquitted of the charge under section 323, P.P.C. Nazir, Abid and Ghulam Rasool appellants had caused injuries on the persons of Bashir Ahmad (P.W.8) and Akbar (P.W.9). Their conviction under section 323, P.P.C. Is, therefore, maintained but the sentence of one year's R.I. Awarded to each one of them is reduced to the term of imprisonment already suffered by each one of them, after extending to them the benefit of the provisions of section 382-B of the Cr.P.C. All four of them are on bail and are set at liberty after being discharged from the said bail bonds which hereby stand cancelled.
18. We further direct that the amount of fine imposed on Imdad appellant under section 302, P.P.C.
Shall also be paid to the heirs of Allah Yar deceased in addition to the independent compensation ordered to be paid to them by Imdad appellant.
19. Murder Reference No,440 of 1991 and Criminal Appeal No,719 of 1991 stand disposed of in the above terms.
' Sentence of death is not confirmed.