' MANSOOR ALAMGIR QAZI, J.--- Shahbaz Ahmad, aged 19 years, Ghulam Abbas, 17 years, Altaf Hussain 40 years along with Muhammad Sharif aged 54 years were sent up and arraigned for trial before Mr. Khadim Hussain Malik, Additional Sessions Judge, Gujranwala. Through judgment, dated 30-11-1991 Muhammad Sharif was acquitted of the charge while Shahbaz Ahmad and Altaf Hussain were convicted under section 302/34, P.P.C. And sentenced to death. They were also ordered to pay fine of Rs,10,000 each and in default of fine to further undergo R.I. For two years. It was also directed that each of them shall pay Rs,10,000 as compensation to heirs of the deceased and in default thereof to undergo R.I. For a period of six months. While Ghulam Abbas was convicted under section 302/34, P.P.C. And sentenced to undergo life imprisonment. He was also sentenced to pay Rs,10,000 as fine and in default of the fine to undergo R.I. For two years. It was also ordered that he would pay Rs,10,000 as compensation to the legal heirs of the deceased and in default of payment of compensation to undergo further R.I. For six months. Ghulam Abbas Was further convicted under section 324, P.P.C. For having caused injuries to Muhammad Saleem and was sentenced to R.I. For one year and also ordered to pay Rs,1,000 and in default of payment of fine to further undergo R.I.
For one month. It was also directed that he shall also pay Rs,1,000 as compensation to the injured and in default thereof to undergo further R.I. For one month. He was however, given the benefit of section 382-B, Cr.P.C. So far as his sentence under section 324, P.P.C. Was concerned.
2. Briefly the facts of the case as narrated by Nasir Iqbal complainant are that he is the owner of Idnan Building Material Store situated in Main Bazar near Gali Arain, Wazirabad. Near to his shop there is another shop of tents namely Punjab Tent Service. Another branch of Punjab Tent Service is in Moti Bazar, Wazirabad. The owner of the Punjab Tent Service is Muhammad Sharif (the acquitted accused). He is resident of Mohallah Lakar Mandi. On 15-12-1989 at about 1-3011-45 p.m. The shop of Nasir Iqbal complainant was open and he along with his brothers Muhammad Saleem and Akhtar Ali and one Zafar Iqbal his neighbor were sitting in the said shop. At, the same time Shahbaz, Ghulam Abbas and Altaf alias Bhola accused, all armed with Chhuris came out of the shop of Muhammad Sharif Hajam, their father. The accused persons raised Lalkara that they would not spare Akhtar Ali and his helpers. Muhammad Sharif accused also came there hurling abuses at the complainant party. At this two brothers of the complainant namely Akhtar Ali and Muhammad Saleem also came out of the shop. Ghulam Abbas grappled with Akhtar Ali and took him in his clasp from behind. After that accused Shahbaz and Altaf Hussain alias Bhola inflicted Chhuri blows on the right, left and front side of the chest of Akhtar Ali. Blood started coming out from the injuries of Akhtar Ali at which Ghulam Abbas accused released him from his clasp. Akhtar Ali injured while putting his hands on his injuries. Started running towards north side and fell down in front of the shop of Noor Muhammad. Muhammad Saleem (P.W.11) tried to rescue Akhtar Ali injured at which Ghulam Abbas accused inflicted two Chhuri blows to him which struck him on the right flank. The complainant came forward to rescue Akhtar Ali at which Muhammad Sharif accused picked up a chair lying nearby and struck the same on the complainants left wrist. The complainant alongwith his brother Muhammad Saleem picked up some brick bats and threw the same at the accused persons. Muhammad Sharif accused received injuries by the brick-bats and fell down. The complainant party raised hue and cry at which many people gathered there who reprimanded the accused persons at which all of them except Muhammad Sharif fled away from the spot alongwith their respective weapons of offence. The complainant alongwith Zafar lqbal P.W. (not produced) took both the injured Akhtar Ali and Muhammad Saleem to Civil Hospital, Wazirabad. Akhtar Ali injured succumbed to the injuries on the way to the hospital.
3. Motive for the alleged occurrence was that about 4/5 years prior to the occurrence Muhammad Riaz elder brother of the complainant' and a nephew of Muhammad Sharif accused namely Sabir Hussain alias Bello who is also brother of Altaf accused worked as labourer in Abu-Dhabi where they had a scuffle which had after effects even at Wazirabad and created bad relations between the parties. Elders of the parties patched up the matter 2/3 times but the accused kept grudge in their minds. About one and a half hours before the present occurrence Akhtar Ali deceased who had come to Pakistan from France on 11-12-1989, on leave, had a scuffle with accused Shahbaz in Moti Bazar, Wazirabad. After that Akhtar Ali deceased told the complainant side about the said quarrel at their shop. The accused had already made plan and thus after some time came to the complainant's shop and committed the present occurrence.
4. The present occurrence took place on 15-12-1989 at 1-45 p.m. In Main Bazar near Gali Arrayan at a distance of two furlongs from the Police Station City, Wazirabad and Nasir lqbal (P.W.10) got recorded his statement (Exh.P.G.) in the Civil Hospital, Wazirabad at 2-30 p.m. On 15-12-1989. It was recorded by Ghulam Qamar, Inspector/S.H.O., Police Station City Wazirabad and sent to the police station for the formal registration of the F.I.R. There. Rashid Hussain Shah, Moharrir/A.S.-I. P.W.8 recorded the F.I.R. (Exh.P.G./1) on the basis of statement Exh.P.G.
5. Akhtar Ali deceased died of the injuries while on way to the Civil Hospital, Wazirabad. The injury statement and the inquest report were prepared by the Investigating Officer and the body of the deceased was sent for postmortem examination. The blood-stained earth was collected from the spot, made into a sealed parcel and taken into possession vide recovery memo. Exh.P.B. In the presence of Ejaz Hussain (P.W.2), Iftekhar Hussain (not produced), and the Investigating Officer, on 15-12-1989. All the accused were arrested by the Investigating Officer on 28-12-1989. On 9-1-1990 Ghulam Abbas, Altaf Hussain and Shahbaz accused got recovered blood-stained Chhuris respectively (memos. Of the Chhuris have not been exhibited in Court for the reason that Ghulam Qamar the Investigating Officer died before he could appear in Court and his handwriting was proved through Rashid Shah (P.W.12) who was working as Moharrir/A.S.-I., Police Station Wazirabad.
6. Dr. Muhammad Arshad Sain who has appeared as P.W.3 has stated that on 16-12-1989 at 10-00 a.m. He conducted the autopsy of dead body of Akhtar Ali aged 32 years and found the following injuries on his person:--
(1) An incised wound 2.5 c.m. x 0.7 c.m. x scalp deep on the left side of forehead 2 c.m. Above the left eyebrow just left to the mid-line.
(2) An incised wound 4 c.m. x 1 c.m. x going deep on the left side of the chest, 4.5 c.m. Below the left nipple 5 c.m. Left to the mid-line.
(3) An incised wound 2.5 c.m. x 1.2 c.m. x going deep on the right side of chest 6.5 c.m. Below and left to the right nipple 5 c.m. Right to the mid-line.
(4) An incised wound 3 c.m. x 1 c.m. x going deep on the middle of left axilla 2 c.m. Below the axillary line.
(5) An incised wound 4 c.m. x 0.5 c.m. x skin deep on the front of right :hest 2 c.m. Below and right to the injury No,3.
(6) An incis,-,1 wound 5 c.m. x 0.5 c.m. x skin deep on the front of right chest and upper abdomen 12 c.m. Above he umbilicus 1 c.m. Right to the mid-line.
(7) Abrasion 0.5 c.m. x 0.5 c.m. On the back of let! Elbow.
(8) Abraded area 4 c.m. x 3 c.m. On the back and top of left shoulder."
' He has further opined that death in the, present case occurred due to injuries Nos.2 and 3. All the injuries were ante-mortem and the time between the injuries was 3 to 10 minutes while between death and post-mortem about 20 hours. Dr. Shaukat Ali, Medical Officer, Tehsil Headquarters Hospital, Wazirabad (P.W.4) medically examined Nasir Iqbal complainant and found the following injury on his person:-- "Abrasion area 5 c.m. x 2.5 c.m. On the back of left fore-arm, upper part 8 c.m. Below the elbow joint."
' The doctor also opined that this injury was caused with blunt weapon within the duration of 48 to 60 hours. Dr. Shaukat Rana, S.M.O., Tehsil Headquarter Hospital, Wazirabad (P.W.5) medically examined Saleem (P.W.11) and found the following injuries on his person:--
(1) Incised wound 5 c.m. x 3 c.m. x skin deep horizontal in direction on right side of back of flanks 3 c.m. From eleic-crest 27 c.m. From umbilicus.
(2) Incised wound 4 c.m. x 0.8 c.m. x skin deep vertical in direction 2.5 c.m. Below injury No,1 above the eleic-crest."
' Duration of these injuries was opined to be fresh and caused with sharp-edged weapon. On the same day at 2-00 p.m. He also examined Muhammad Sharif accused and found the following injuries on his person:--
(1) Lacerated wound 4 c.m. x 0.4 c.m. x scalp deep at the left side of ear 7 c.m. Above left ear.
(2) Lacerated wound 1 c.m. x 0.3 c.m. x skin deep above the right eyebrow on the lateral margin.
(3) Abrasion 1 c.m. x 1 c.m., 2 c.m. Above the lateral malulas on left leg.
(4) Triangular wound 0.5 c.m. x 0.3 c.m. x going deep 4 c.m. Above the medial malulas on the left leg.
(5) Clinical fracture of left leg.
' Injuries Nos-A , 2 and 3 were declared simple and injuries Nos.4 and 5 were found as grievous. All the injuries were caused with blunt weapon and duration of the injuries was fresh.
7. To prove the prosecution case, the prosecution has produced 12 witnesses and the accused were examined under section 342, Cr.P.C. Ghulam Abbas appellant has stated as under:-- "I am innocent. Nasir Iqbal and Zafar Iqbal P.Ws. We're not present at the spot. Zafar Iqbal has become P.W. Due to his friendship with the complainant party. As a matter of fact Muhammad Saleem and Akhtar Ali came to my father's shop while armed with Saria and a Chabbal and after inquiry about Shahbaz accused started giving filthy abuses to my father. Akhtar Ali deceased picked up a quarrel with my brother Shahbaz at a shop in Moti Bazar 1-1/2 hours prior to this occurrence. Akhtar Ali and Saleem came to my father's shop in search of Shahbaz. As Shahbaz was not there, the aforesaid two persons pounced upon my father and launched a murderous assault on my father with their respective weapons. I apprehended death or grievous hurt to my father at the hands of aforesaid persons, I picked up a small rope cutting knife from our shop and in order to scare off the assailants, I acted in the exercise of the right of private defence of my father. The complainant party had assumed the role of aggressors and it were they who launched a murderous attack on my father. We had advanced this plea before the Investigating Officer who accepted the same to be correct. The complainant party have fabricated a false story and implicated our family in this case."
8. None of the accused opted to appear as their own witness as required under section 340(2), Cr.P.C. To disprove the allegations levelled against them and neither of them led any defence evidence.
9. Disbelieving the defence version, the learned Additional Sessions Judge, Gujranwala convicted the accused/appellants as aforesaid vide judgment, dated 30-11-1991.
10. The State has preferred Murder Reference No,49 of 1992 for the confirmation of the death sentence awarded to the accused. Shahbaz Ahmad and Ghulam Abbas have preferred Criminal Appeal No,1246 of 1991 while Altaf Hussain has challenged the judgment vide Criminal Appeal No,1235 of 1991. Nasir Iqbal complainant filed Criminal Revision No,431 of 1992 for the enhancement of compensation and for also awarding death penalty to Ghulam Abbas appellant. The complainant through Criminal Revision No,193 of 1992 has challenged the acquittal of Muhammad Sharif accused and has prayed that he be also sentenced alongwith the other accused in accordance with law. We intend to dispose of all these matters through this one and same judgment.
11. At the very outset of hearing of these appeals Mr. Ejaz Hussain Batalvi, learned counsel for Shahbaz Ahmad appellant in Criminal Appeal No,1246 of 1991 has placed on record a certificate signed by the Medical Officer, New Central Jail, Bahawalpur, dated 28-7-1997 wherein it is stated that Shahbaz appellant died in the Jail Hospital on 27-1-1997 at 8-30 p.m. And thus the appeal against him stands abated.
12. Learned counsel for the complainant and the learned counsel for the State have been heard at length and the points urged by the defence have been discussed within the framework of the prosecution evidence. However, learned counsel for the State has supported the judgment and prayed that conviction and sentence awarded to the appellants be maintained.
13. After hearing the parties at length we have given our anxious thought and have perused the entire evidence on record. It is admittedton record that the appellants Shahbaz and Ghulam Abbas are sons of Muhammad Sharif (acquitted accused) while Altaf appellant is the nephew of said Muhammad Sharif. On the other hand it is admitted that Nasir Iqbal (P.W.10) and Muhammad Saleem (P.W.I1) are real brothers of deceased Akhtar Ali and they own a shop in Bazar and that their presence is natural. The occurrence taking place in Main Bazar at day time is not denied.
However, the place of occurrence is contested by the complainant party who assert that the occurrence took place in front of their shop while the accused assert that the occurrence took place in front of their shop in the said Bazar. However, the blood-stained earth was taken from point "B" which is opposite to the shop of the accused. In the backdrop of these undisputed facts the learned counsel for the appellants have urged and submitted that if both the versions are placed in juxtaposition evidence can be assessed and appraised in the proper legal perspective.
Our attention has been drawn to the fact that the blood-stained earth was taken only from point "B" which is in front of the shop of the accused while point "A" being at a distance of 18 feet from the shop of the complainant and at a distance of 29 feet from point "B" and that according to the Dr. Muhammad Arshad Sain (P.W.3) the deceased, after sustaining injuries Nos.2 and 3 which injured the left lung, pericardium and heart and the right lung respectively, the deceased was not in a position to perform any volitional act. Furthermore, keeping in view the injuries on the various parts of the body, there was no likelihood of this being the case where the deceased was in the clasp of Ghulam Abbas appellant as stated by the prosecution witnesses. It has been urged that the injuries received by Muhammad Sharif (P.W.) are of such nature that they could not be sustained as explained by the prosecution witnesses. Dr. Shaukat Rana (P.W.5) has also negated the prosecution case and stated that he did not find any particle of bricks in the wound of Muhammad Sharif accused. It has been further urged that Akhtar Ali deceased had told his brother just before the occurrence that he was present at that time in Moti Bazar, Wazirabad where Shahbaz accused had done grievous wrong to him and thus it was the complainant party who was the aggrieved and the accused had no cause to initiate the attack. Lastly it was contended that the prosecution has not come forth with clean hands and the prosecution case does not stand proved beyond reasonable doubt. The version of the accused is plausible and it is spelt out also from the prosecution evidence.
13. The submissions made by the learned counsel for the appellant carry weight and injuries Nos.4 and 5 suffered by Muhammad Sharif accused father of Shahbaz Ahmad, and Ghulam Abbas appellants are of grievous nature being fracture of tibia and fibular bone which could not in any manner be caused by brick-bats as alleged by the prosecution witnesses. In view of the statement of Dr. Muhammad Arshad Sian (P.W.3) it also seems probable that the occurrence initiated and culminated at point "B" which is in front the shop of the accused which itself makes it abundantly evident and clear that the complainant party came from distance to initiate the attack. However, the participation of Ghulam Abbas with the role attributed to him appears to be doubtful and thus his case is distinguishable from that of Altaf Hussain. Altaf Hussain has been attributed blows with Chhuri to the deceased along with Shahbaz Ahmad co-accused (now dead) and the number of injuries with Chhuris are six. Thus, it appears that Altaf Hussain has committed an excess of what was allowed and permissible under the law. So far as Altaf Hussain accused is concerned his conviction under section 302/34, P.P.C. Is converted to one under section 304, P.P.C. And sentenced to undergo R.I. For seven years. He is also sentenced to fine of Rs,10,000 in default of payment whereof he shall undergo further R.I. For six months. He is allowed the benefit under section 382-B, Cr.P.C.
14. As far Ghulam Abbas his conviction and sentence under section 302/34, P.P.C. Is set aside.
However, his conviction and sentence under section 324, P.P.C. Is maintained. The sentence of fine and in default of payment of fine R.I. Is also maintained. The sentence awarding the compensation is set aside.
15. Both the criminal revision petitions are devoid of force and are thus dismissed.
' With the above observations all the matters are disposed of accordingly. Death sentence NOT confirmed.