' KHALIL-UR-REHMAN RAMDAY, J.--- Azam and his two brothers, namely, Aslam and Noor Muhammad; Sheroo son of the said Noor Muhammad; Ilyas, a Phoophizad of Azam, Aslam and Noor Muhammad and Ashiq and Mushtaq had been tried by a learned Additional Sessions Judge at Kasur for having formed an unlawful assembly; having committed the murder of one Hurmat in prosecution of the common object of the said unlawful assembly and for having murderously assaulted Rehmat Khan, Imtiaz Ali, Israil, Faqir Hussain and Mst. Rehmati. Through his judgment, dated 23-12-1991 the said learned Additional Sessions Judge acquitted Aslam and Mushtaq accused. Azam accused was convicted under section 302, P.P.C. And was punished with death. No fine was imposed on Azam convict nor was any order made for payment of compensation by him.
He had also been convicted under section 148, P.P.C. And punished with two years' S.I. With a fine of Rs,20,000 or six months' S.I. In default of payment of the said fine. Ilyas accused was convicted under section 323, P.P.C. For causing injuries on the person of Israil P.W. And sentenced to one year's S.I. Noor Muhammad and Ashiq were also convicted under section 323, P.P.C.. And punished for one year's S.I. For causing injuries on the person of Faqir Hussain P.W. Sheroo was also convicted under section 323, P.P.C. And punished with one year imprisonment for causing injury on the person of Imtiaz P.W. Ilyas, Noor Muhammad, Ashiq and Sheroo were further convicted under section 148, P.P.C. And each one of them was directed to suffer two years' S.I. With a fine of Rs,10,000 each or three months' S.I. In default thereof. The sentences of imprisonment were directed to run concurrently and the accused persons punished with the same were also allowed the benefit of the provisions of section 382-B, Cr.P.C.
2. Murder Reference No,132 of 1992 seeks confirmation of the sentence of death awarded to Azam convict. Criminal Appeal No,2 of 1992 was filed jointly by all the abovementioned convicts calling in question the abovenoticed conviction 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 10-2-1990 at about 10-00 a.m. Outside the Haveli of one Abdur Rasheed in the area of village Kando Khera about eight miles from Police Station Chunian of District Kasur. This occurrence had been reported by Imtiaz Ali to Ali Akber, Inspector/S.H.O. (P.W.15) at about 11-10 a.m. At Civil Hospital, Chunian.
4. Narrating the occurrence and the background leading thereto, Imtiaz complainant had disclosed that civil litigation was pending between his paternal-uncle Faqir Hussain (P.W.5) and Abdur Rasheed on one side and one Mummal and the other side; that the said Mummal had, on many occasions, with the help of others, tried to take forcible possession of the land in dispute from Faqir Hussain and Abdur Rasheed but had remained unsuccessful and that Mummal party had even got a case bearing F.I.R. No,389 of 1989 registered against the present complainant party at Police Station Chunian which was under investigation in which case eight accused persons from the present complainant party had secured their pre-arrest bail on 8-2-1990. The complainant had added that on the night proceeding the day of occurrence, Mummal party encircled the Haveli of Abdur Rashid and started closing the circle after the sunrise. The complainant had further added that at that time a brother of the said Abdur Rasheed, namely, Israil and their father, namely, Dandhal; two maternal-uncles of Abdur Rasheed namely, Rehmat and Hurmat deceased; the wife of Abdur Rasheed, namely, Mst. Rehmati; complainant's maternal-uncle, namely, Faqir Hussain P.W.; two sisters of the abovementioned Abdur Rasheed; his brother's wife and children etc. Were present in their Haveli. The complainant had further alleged that at about 10-00 a.m. Azam, Aslam, Noor Muhammad, Hanif, Noor Muhammad son of Saido, Sheroo son of Noor Muhammad, Ilyas, Mushtaq, Lal Din and Ashiq who were armed with guns and rifles came near the Haveli at which the complainant and other inmates of the Haveli tried to slip out of the Haveli whereupon Azam appellant fired a shot hitting the head of Hurmat deceased who was hiding along a watercourse.
The complainant had further claimed that Mst. Rehmati fell over his fallen brother, namely, Hurmat deceased to save him at which Noor Muhammad son of Saido fired a shot hitting the right hip of Mst. Rehmati. Ilyas appellant then fired a shot hitting the right thigh of Israil P.W.; Hanif appellant was next to follow whose fire hit the chest of Rehmat P.W.; Noor son of Mummal then fired a shot which landed on the left thigh of Faqir Hussain P.W. And after all these persons had fallen injured, all the accused persons started giving fist blows to the womenfolk of Dandhal and while leaving the place of occurrence took away cash and other precious items from the Haveli. The complainant had further alleged that the accused persons took away the dead body of Hurmat deceased also with them to their Haveli.
5. The Investigating Officer makes no mention of lifting of blood-stained earth though Shaukat Ali, F.C. (P.W.2) deposed that the Investigating Officer had taken blood-stained earth from the place of occurrence in his presence vide memo. Exh.P.A. In cross-examination this P.W., however, mentioned that the blood-stained earth was taken from the place where the dead body was lying in the courtyard of the house and explained further that this was the house of Hurmat deceased. During the course of investigation some of the accused persons had been arrested by Ali Akbar/Inspector-S.H.O. (P.W.15) on 24-2-1990 while the other had been arrested on 6-3-1990. Rifle (P.7), another rifle (P.6) and a .12 bore gun (P.8) had been found on the person of Azam, Ashiq and Sheroo accused, respectively at the time of their arrest on 24-2-1990 and the same had been taken into possession vide memos. Exhs.P.G., P.H. And P.F., respectively on 10-3-1990. Ryas and Noor accused had led to the recovery of guns (P.9 and P.10 respectively) from their respective houses which had been seized vide memo. Exhs.P.J. And P.K.
6. When confronted with the prosecution case under section 342, Cr.P.C. Azam appellant pleaded that the Havelis of Dandhal, i,e, of the deceased party and that of Mummal i,e, of the appellant party were situated within a distance of one acre from each other; that the land in dispute was in the possession of the appellant party; that the complainant party had made various attempts to get forcible possession of the said land from the appellant party but could not succeed; that on the day of occurrence, the complainant party hired some notorious criminals and launched the attack on the appellant party during the late hours of the night; that there was exchange of firing between the two sides; that Hurmat deceased and the Is.Ws. Were present in the Haveli of Dandhal and were fully armed with deadly weapons; that they had started firing shots on the Haveli of the complainant party; that the complainant party had fired back to save their lives and to defend the possession of the land in dispute; that about 1000 shots had been fired by both sides and finally that the deceased had died by a shot fired by his own party inside his own Haveli. The other accused persons had adopted the statement made by Azam appellant.
7. As would be noticed from the above reproduction of both the versions of the occurrence in question, the occurrence is admitted on both sides. The prosecution however, claims that it was the appellant party who had commenced aggression while the defence claims that it was the complainant party who had initiated the proceedings. The only and the crutial question which thus, requires determination is as to which of the two parties had mounted the assault.
8. Dr. Muhammad Arif (P.W.14) had conducted the post-mortem examination of the dead body of Hurmat deceased on the very day of occurrence i,e, on 10-2-1990 and had found a wound of entry on his right temporal region which had exited from the backside of his head. On the same day he had medically examined Israil (P.W.10), Faqir (P.W.11), Imtiaz (P.W.9), Rehmat (P.W.8) and Mst.
Rehmati (not produced). Faqir (P.W.11) was found to have two fire-arm entry wounds and a wound of exit on his person. The other four injured persons had one fire-arm wound each on their bodies.
9. The defence had not questioned the existence of these injuries on the bodies of the abovementioned P.Ws. And on the person of Mst. Rehmati. It means that these persons including the wife of Dandhal who was the mother of Israil (P.W.10) and a sister of Hurmat deceased and Rehmat (P.W.8) had received fire-arm wounds in the occurrence in question. Not even a scratch had been received by any one from the appellant side.
10. It is not reasonably believable that a large number of persons from the complainant side including the alleged notorious criminals would mount an attack on the appellant party with fire- arms and not even a scratch would be caused on any member of the appellant party and the complainant party would return home with one dead and five injured. As has been mentioned above Mst. Rehmati had also received a fire-arm injury on her person and it does not stand to reason that this Mst. Rehmati would have also accompanied her family members to launch the aggression on the appellant party. We would, therefore, reject the defence explanation of the occurrence as being unreasonable and implausible.
11. The prosecution case is supported by four eye-witnesses who were all admittedly injured persons of the occurrence in question. The defence claim that the complainant party had hired notorious criminals to launch an attack on the appellant party is also a bald claim. Amongst the deceased and the injured persons, Hurmat deceased and Rehmat (P.W.8) were not the residents of the village which was the place of occurrence. Hurmat deceased was about 60 years of age while his brother Rehmat P.W. Was about 55 years of age. They are the brothers of Mst. Rehmati who is the wife of Dandhal. Their ages and their close relationship with Dandhal rule out the possibility of having been summoned to wage the war as alleged. Faqir P.W. Is the one who is himself involved in the litigation of the land in question being the party from Dandhal side and Imtiaz P.W. Is his nephew. Israil P.W. Who was another admitted injured of the occurrence in question, and, thus, admittedly present in the occurrence was a son of Dandhal.
12. Having, thus, assessed the evidence and the material available on record we find that no exception could be taken to the finding of guilt as recorded by the learned trial Judge against the members of the appellant party.
13. In this view of the matter we find that Muhammad Azam appellant who had fired the fatal shot at Hurmat deceased was rightly convicted under section 302, P.P.C. The appellant party had mounted the attack on the complainant party on account of a dispute of land which existed between the two sides. Azam appellant is a son of Mummal who was directly involved in this dispute. No mitigating circumstance, thus, exists in Azam's case which could warrant a lenient treatment for him. Consequently, the sentence of death awarded to him under section 302, P.P.C.
For the murder of Hurmat deceased is confirmed.
14. The other four appellants, namely, Noor Muhammad son of Mummal Khan, Sheroo son of Noor Muhammad, Ashiq son of Lat and Ilyas son of Raj who had been convicted under section 323, P.P.C.
For injuries that each one of them had caused on the person of the injured P. Ws. No exception can be taken to the conviction and sentences recorded against each one of them under section 323.
P.P.C. These convictions and sentences are, therefore, also maintained. Similar is the position of the conviction and sentences recorded agianst each one of the five appellants under section 148, P.P.C.
Their conviction under the said section and the sentences recorded thereunder are also maintained.
15. Consequently, Criminal Appeal No,2 of 1992 is dismissed and Murder Reference No,132 of 1992 is answered with confirmation of the sentence of death awarded to Azam appellant.
16. Before we part with this judgment we must express our displeasure about the manner in which the learned trial Judge Ch. Muhammad Zafar Ullah, Additional Sessions Judge, Chunian had dealt with Muhammad Azam appellant while awarding punishment to him under section 302, P.P.C. The learned trial Judge had neither imposed any fine on Muhammad Azam appellant which was a mandatory requirement of section 302, P.P.C. Nor had the learned trial Judge passed any order under section 554-A of the Cr.P.C. For awarding compensation to the heirs of the deceased which was another mandatory requirement.
17. We could have rectified the error but no revision had been filed before us either by the State or by the complainant for the purpose nor was the learned counsel for the appellant willing to accept notice on behalf of the appellant for the purpose as the learned counsel stated that he had no instructions to receive the said notice.
18. A copy of this judgment shall be sent to the learned trial Judge wherever he be presently posted for his information and guidance. The above observations made by us about the conduct of the learned trial Judge shall be placed on his service record.