DR. MUNIR AHMAD MUGHAL, J.--The appellants, Zafar and Muhammad Aslam alongwith 4 others were charged and tried by Mr. Parvez Mahmood Mian, Additional Sessions Judge, Faisalabad, under sections 302/337/324/148/149 P.P.C, for causing Qatl-i-Amd of Abdul Ghafoor deceased and.
For attempting to commit Qatl-i-Amd of Zulfiqar Ali Raza, P.W. All except the present appellants were found innocent and acquitted. The learned Trial Judge found both the appellants guilty under section 302/34 PPC and sentenced to life imprisonment with a fine of Rs.25,000/- each and in default of payment to undergo further 2 years R.I. Each, they were also directed io pay compensation to legal heirs of the deceased amounting to Rs.25,000/- each and in default thereof to undergo 6 months R.1, each. The compensation if recovered was ordered to be paid to the legal heirs of Abdul Ghafoor, deceased. Muhammad Aslam appellant was also found-guilty for attempt to commit Qatl-i-Amd of Zulfiqar Ali Razak injured P.W. And convicted under section 324 PPC and sentenced to 7 years R.I. With a fine of Rs.5,000/- and in default thereto to undergo 6 months R.I. He was also directed to pay compensation to Zulfiqar Ali injured PW amounting to Rs.5,000/- and in default thereof to undergo 6 months further R.1. His both sentences were ordered to run concurrently. Both the appellants were given benefit of section 382- B, Cr.P.C. By this appeal they have assailed the judgment of the learned Additional Sessions Judge, Faisalabad.
2. Briefly the prosecution story is that Zulfiqar Ali Raza, complainant made his statement before the police on 24-10-1992 relating to the present occurrence which had taken place on 22-10-1992 in which he alleged that he is resident of Chak No. 61/GB, Abadi No. 2. There is a common pucca wall in between their house and that of Muhammad Tufail (accused)- On 22-10-1992 at about 2 P.M.
Zafar s/o Muhammad Tufail, Mst. Naziran Bibi w/o Muhammad Tufail and Mst. Bashiran Bibi d/o Muhammad Tufail, started putting mud over the common pucca wall. His father was not present in the house. The complainant and his mother Mst. Naseeran Bibi refrained Zafar etc. From doing so because in this way the mud was dropping in the manger of their cattle and if they want to make the wall high, the same be made with pucca bricks upon which Zafar replied that if the complainant would not let them to raise the katcha wall, he shall not let the pucca wall remained there and he pulled four layers of bricks from the wall. The complainant stopped him from doing so upon which Zafar jumped into their courtyard and gave him slaps. His mother, sister and Abdullah s/o Ghulam Rasul who had come to their house as a guest intervened and spared him from Zafar accused. Zafar went to his house and their women folk kept on abusing them.
3. At about 3 P.M. His father Abdul Ghafoor (deceased) was coming home upon receiving the information. When he reached near the house of Akram s/o Muhammad Tufail, Zafar armed with - sola, Muhammad Aslam armed with hatchet, Atta Muhammad armed with sota, Khurshid Bibi w/o Muhammad Aslam and Perveen Bibi w/o Muhammad Akram armed with sotas residents of the- village raising lalkara that Abdul Ghafoor be not spared today and attacked upon him. Aslam accused gave a hatchet below upon the head of Abdul Ghafoor hitting of the left side of his head.
Then Zafar accused gave to sota blows on the back side of the head of Abdul Ghafoor who fell on the ground. When Abdul Ghafoor was fallen on the ground. Atta Muhammad, Muhammad Tufail and Mst. Perveen accused gave him orfe sota blow each which hit him on the back side of chest towards left side, on the back and mouth. In the meanwhile, the complainant alongwith his sister Mst. Sarwari Bibi went forward to rescue their father when all the accused attacked upon them.
Muhammad Aslam gave a hatchet blow hitting on the head of complainant, Khurshid Bibi gave him a sota blow on the head, Zafar, Muhammad Tufail and Atta Muhammad gave him sota blows which hit him on the right cheek, on the fore-head towards left side, on the back side of left elbow, on the back of chest towards right side and on the left ankle. Perveen Bibi gave a sota blow on the right side of head of his sister. On their hue and cry, Rana Abdul Sattar and Abdullah s/o Ghulam Rasul PWs/attracted to the place of occurrence. The PWs; and other people of the village got them rescued from the accused. The complainant alongwith his father and sister came to Jaranwala Hospital in injured condition. He and his father (Abdul Ghafoor) was got admitted in the hospital.
On 23-10-1992, Abdul Ghafoor was shifted to Allied Hospital, Faisalabad, due to his serious condition.
4. Primarily the case was registered under sections 324/337/148/149 PPC but later, after the death of Abdul Ghafoor, deceased, section 302 PPC was added thereto. The Police after investigating and completing the necessary formalities challaned the accused to the Court where they were charged on 18-5-1993 under section 148,302/149 PPC. Zafar, Muhammad Aslam, Muhammad Tufail, Atta Muhammad and Mst. Khurshid Bibi accused were also charged under section 324/149 PPC for causing injuries to Zulfiqar All PW while Mst. Parveen was charged u/S. 337-A(i)/149 PPC for causing hurt to Mst. Sarwari Bibi PW. To prove its case the prosecution has produced 12 witnesses. Sadar Khan (PW.1) identified the dead body. Zulfiqar Ali (P.W.2) guarded the dead body of Abdul Ghafoor deceased and after the conducting of the post-mortem examination by the Doctor took relevant papers and last worn clothes Chader P.I and Kameez P.W.2 of the deceased. Which were taken into custody vide memo. Ex.PA by the Investigating Officer on 25-10-1992. Dr. Muhammad Imtiaz Rabbani (P.W.3) on 25-10-1992 conducted post-mortem examination of the deceased and found following injuries on his body.
1. A lacerated wound 3 cm x 1 cm x bone deep with swelling 10 x 8 cm on left side of the top of head 4 cm below from mid-line. On dissection following were observations.
There was a fracture line 5 x 1/10 cm on the skull. On opening the skull, multiple sub-dural haemorrhage were seen.
2. A swelling 8 x 5 cm on right side of top of head. On opening the scalp, haema-toma was seen.
The suture line between frontal and prietal bone was separated. On opening the skull, multiple sub- dural haema toma was seen.
3. A swelling 5 x 4 cm on back of head. On opening the scalp no fracture was seen. On opening the skull, meanings and brain were normal.
4. There was a contused, swelling 16 x 10 cm on back of left chest. On opening the chest, no fracture of ribs was seen.
5. A contused swelling 5 x 2 cm on back of lumber spine. On opening the abdomen, no fracture of lumber spine was seen.
In his opinion, injuries No. 1 and 2 were fatal, rest were simple. All the injuries were ante-mortem and were caused by blunt weapon. The death in his opinion was due to injuries to brain, haemorrhage and shock which ultimately led to cardiopalmonal arrest as a result of injuries 1 and 2 which were fatal and caused by blunt weapon and were sufficient to cause death in ordinary course of nature.
Muhammad Sabir (PW.4) deposed that on 24-10-1992 he recorded formal FIR No. 612/92 (Ex.PE) under sections 324/337-F-i/148/149 PPC and sent the same to Muhammad Ashraf SI for investigation. He further deposed that he on 24-10-1992 produced death certificate of Abdul Ghafoor deceased issued by Dr. Muhammad Iqbal (Ex.PF). He made its entry vide report No. 19 dated 25-10-1992 in the daily register and added section 302 PPC in the FIR (Ex.PE) and sent the copies of the' same to the I.O. And other concerned authorities on which amended FIR (Ex.PE/1) was registered. He also kept in safe custody parcel containing blood-stained earth and hatchet in the malkhana and handed over the same to Ahmed Ali constable for onwards transmission to the office of Chemical Examiner, Lahore. The said Ahmed Ali (PW.5) deposited the above parcels in the-office of Chemical Examiner on 4- 11-1992 intact. P.W.6 is Dr. Muhammad Iqbal, who on 24-10- 1992 issued death certificate Ex.PF of the deceased, Abdul Ghafoor.
5. P.W.7 is Dr. Muhammad Rafiq, who on 22-10-1992 medically examined Abdul Ghafoor son of Abad Ali and found the following injuries on his person.
1. Lacerated wound 3 cm x 1 cm x bone deep on the left side of head.
2. A contused swelling 18 x 12 cm on the back of left chest.
3. A contusion mark 6 x 2 cm on the back (lumber region).
4. A contused swelling 4 x 3 cm on right side of head.
5. A contused swelling 4 x 4 cm on back of head.
6. To incisor and two canion teeth of upper side were shaky.
Ex.PG, is the correct carbon copy of his medico-legal examination and Ex.PG/I is the sketch of injuries in his on had and signed by him. On the same day he examined Zulfiqar at 6.30 PM and found following injuries on his person:
1. An incised wound 3 x 1 cm bone deep on right side of head.
2. A contused swelling 3 x 2-1/2 cm on right cheek.
3. A contused swelling 2 x 2 cm on left side of fore-head.
4. A contused swelling 5 x 3 cm on left side of head.
5. An abrasion 2 x 1 cm on the left elbow.
6. Multiple contusion mark covering area 20 cm x 10 cm on the right and left chest (back of chest).
7. An abrasion 1 x 1 cm on the left key.
Injury No. 1 was by sharp edged weapon and rest were found to be by blunt weapon. His medico- legal report is Ex.PH and sketch of injuries is Ex.PH/1. He also examined Mst. Sarwar Bibi on the same day at 6.55 PM and found following injury on her person.
1. A lacerated wound 1-1/2 x 1 cm skin deep with swelling 5 x 4 cm on right side of head.
The injury was declared to be caused by blunt weapon Ex.PJ is the correct carbon copy of his -MLR while Ex.PJ/1 is sketch of injury.
6. During cross-examination PW.7 admitted that according to MLR, on, 22-10-1992 at about 4.55 PM he medically examined Muhammad Aslam and found following injuries on his person:
1. A contused swelling 16 x 10 cm with abrasion 12 cm x 1/8 cm on the back of right upper chest.
2. A contusion mark 10 x 8 cm on the left side of chest. (Back side).
3. Complaint of pain on the thumb of left had.
4. A contusion mark 12 x 2 cm on the left shoulder.
5. Complaint of pain on the right thigh.
Injuries No. 1 and 2 were kept under observation while the rest were declared simple and caused by blunt weapon. Ex.PB is the MLR No. 1197/92. On the same day he also examined Zafar Ali and found following injuries on his person:
1. An incised wound 2 x 1 cm bone deep on the left side of forehead.
2. A contusion mark 6 x 2 cm on the left side of chest. (Back side).
3. A contused swelling 7 cm x 5 cm on the back of right chest.
4. A contusion mark 6 x 2 cm on the back of right thigh.
Injury No. 1 was caused by sharp edged weapon and rest were by blunt weapon. Ex.DC is the correct photo copy of the original kept by him.
7. Aurangzeb (P.W.8) is draftsman who prepared site plans Ex.PK and Ex.PK/1 under the instructions of police Zulfiqar Ali Raza (P.W.9) who was an injured PW and complainant, lodged the FIR Ex.P.E. On 24-10-1992. He reaffirmed the story of FIR. He joined the Police investigation and witnessed the blood stained earth taken into possession by the I.O. Vide Memo Ex.PL and signed it. He also produced his blood stained clothes Shalwar P.3 and Kameez P.4 which, were taken into possession by the I.O. Vide memo Ex.P.M. It was signed by him. It is stated by him that on 30-10-1992 Mst.
Khurshid Bibi produced Sota P.5 taken into possession vide Memo Ex.PN and Parveen Bibi produced Sota P6 which was taken into possession by the I.O. Vide memo Ex.P.O. He signed both these memos. It was also slated by him that on 2-11-1992 Aslam accused led to recovery of hatchet P.7 which was taken into possession vide memo. Ex.PP Zafar got recovered sota P.8 taken into possession vide Memo. Ex.PQ. Tufail accused got recovered Sota P.9, which was taken into possession vide Memo.P.R. And Atta Muhammad led to recovery of sota P.10 vide Memo. Ex.PS.Both Mst. Sarwan Bibi (PW.10) and Abdullah (PW. Ll), corroborated the statement of complainant. She was medically examined by the Doctor. Her medico-legal report is Ex.PJ.. Muhammad Ashraf, Sub- Inspector (PW.12) is the Investigating Officer who had conducted the investigation of this case. He deposed that he was in the area of Chak No. 101/GB, when he received the file of this case on 24-10- 1992. He went to the place of occurrence, recorded the statements of PWs. Inspected the spot, collected the blood stained earth vide Memo. Ex. PL signed by Zulfiqar and Abdul Sattar PWs. And made into a sealed parcel. He prepared the rough sketch of the spot and the notes No. 1 to 7 are in his had and signed by him which is ex.PT. On the same day, complainant produced before him Shalwar P.3, Qamiz P.4, blood stained clothes of Zulfiqar Ali, which he took into possession vide Memo. Ex.PM signed by him and Zulfiqar Ali PW. Next day at 1.30 A.M. On receiving the information about death of Abdul Ghafoor deceased, he reached Civil Hospital, Jaranwala, prepared injury statement of deceased vide memo.Ex.PC. Prepared inquest report (Ex.PD) both signed by him. He took into possession Chader P.I and Shirt P.2, last worn clothes of deceased vide memo.Ex.PA. He also recorded the statements of Safdar and Muhammad Boota PWs. He also got prepared site plan ex.PK and P.K./l and red notes thereon are in his had and bear his signatures. On 30.10.1992, he arrested Mst. Khurshid and Mst. Parveen Bibi. Mst. Khurshid Bibi produced sota P.5 vide Memo.PN and Mst. Parveen Bibi produced Sola P.6, taken into possession vide memo. Ex.PO. He sent both the ladies to judicial lock up on. 31.10.1992. He arrested Zafar, Aslam, Muhammad Tufail and Atta Muhammad on 30-10-1992 who on 2-11-1992 led to recoveries of the weapon of Offences. Zafar accused got recovered Sota P.8 vide Memo Ex.PQ, Muhammad Tufail Sola P.9 vide Memo Ex.PR. Atta Muhammad Sola P.10 vide Memo Ex.PS. Muhammad Aslant hatchets P.7 vide Memo. Ex.PP. He also prepared rough sketch of places of recoveries of Sota P.8 which is Ex.PQ/1, Sota P.9 which is ex.PR/1.
Sota P.10 which is Ex.PS/1, hatchet P.7 which is Ex.PP/1 and also recorded the statements of P.Ws. On 15-11-1992 he made two applications to the Medical Officer, THQ Hospital, Jaranwala to enquire about the nature of injuries on the person of Zulfiqar Ali and Sarwan Bibi which were kept under observation. The said applications are Ex.PU and PV respectively and the reports of the doctor on the same are Ex.PU/1 and PV/1 respectively.
8. Mst. Naseeran Bibi, Abdul Sattar, Nisar Ahmad, Falak Sher. Muhammad Boota and Safdar Ali, PWs were given up by the prosecution being unnecessary. The reports of Chemical Examiner as Ex.PX and Ex.PY and that of the Serologist as Ex.PZ and Ex.PAA were tendered in evidence and the prosecution closed its case.
9. The accused in their statements u/S. 342 Cr.P.C, have stated that they have been involved due to enmity. None of the accused wanted to produce defiance evidence. Accused Muhammad Tufail, Atta Muhammad, Khurshid Bibi and Parveen Bibi took the plea that they were not present at the time of occurrence. Zafar accused in answer to question submitted as under:- "I am innocent. I have installed a new Toka machine in my havaili near the common wall and I and Aslam were placing Balas and Beems on the' common wall whereupon Zulfiqar Ali PW insisted that we should pay the money of the common wall and then place .The same on it. I said that the money has been paid and he is nobody to prevent us from placing Balas and Beems on the common wall whereupon Zulfiqar Ali PW abused me and I paid in the same kind. Then he inflicted hatchet blow on my left side of fore-head and there was professed bleeding. Abdul Ghafoor inflicted injuries with sota on my chest and thigh. 1 raised hue and cry. Muhammad Aslam threw brick bats just to save me from the clutches of the complainant party. The complainant party also threw brick bats which hit Muhammad Aslam on his chest, left shoulder and right thigh. I and Muhammad Aslam were admitted in the Hospital and from there after the death of Abdul Ghafoor deceased were arrested from the Hospital and the medico-legal certificates were also handed over to the police."
10. Learned counsel for the appellants has submitted that there is two days delay in lodging the FIR and during these days the complainant concocted a false story and under a planning involved the innocent persons due to enmity, that it was a sudden quarrel which resulted into death of Abdul Ghafoor, deceased, otherwise there was no intention on the part of the accused to murder the deceased, that there was no motive on the part of the appellants to kill the deceased and that when on the same set of evidence some of the accused have been acquitted, the appellants are also entitled to same benefit and to be acquitted. Lastly it was submitted that in no manner the case against the appellants falls under section 302 PPC but under section 304 Part II PPC and the sentence already undergone by them is sufficient to meet the ends of justice. As alleged the appellants have already undergone a sentence of 5 years.
11. On the other had learned counsel for the State has submitted that the motive is fully proved and the prosecution has substantially proved its case against the appellants. In answer to alternative argument of the learned counsel for the appellants that the case falls under section 304 Part II P.P.C, it has been submitted that the case falls under the provisions of section 315 PPC and is liable to 14 years punishment under section 316 PPC because if the statements of appellants are admitted to be correct then it will be Qatl Shibh-i-Amd and liable to diyat and also punishment which may extend to 14 years.
12. I have minutely scrutinized the whole evidence on the record. With the able assistance of the learned counsel for the parties and have also heard their valuable arguments.
13. The admitted position on the record is that there is a common wall between the appellants and the complainant party. It is also admitted position that the dispute arose regarding putting of mud over the common Pakka wall or by placing the Balas and Beems on it. It is also admitted position on the record from the prosecution evidence that there was a sudden quarrel and the parties were injured and the prosecution witnesses concealed the injuries caused to the accused party. It is also on the record that the prosecution could not establish the guilt of lour accused, namely, Muhammad Tufail, Atta Muhammad, Mst. Khurshid Bibi and Mst. Parveen Bibi and in this case the recoveries of the weapon of offence have also not been proved beyond any doubt. The learned Trial Court had totally ignored .The version of the appellant side that the injuries were caused by the exchange of stones and the medical evidence of Dr. Muhammad Rafique is also to the effect that all me injuries were caused by a blunt weapon. He had stated in the examination-in- chiet that injury No. 1 was by sharp edged weapon while rest were by blunt weapon. On the other had Dr. Muhammad Imtiaz Rabbani who conducted the post-mortem examination stated that injury Nos.1 and 2 were fatal and caused by blunt weapon. Injuries to the deceased have been attributed to Muhammad Aslam accused-appellant specifically the fatal injuries. To a suggestion that whether injury caused by the edge of a blunt weapon can be mistakenly understood as that of sharp edged weapon he frankly admitted that it can be mistakenly so understood. In the present case the version alleged by the appellant appears to be more plausible and fitting in the circumstance in which the fight took place between the parties. There were five injuries on the person of accused Muhammad Aslam and four injuries on the person of accused Zafar which were also similar to the injuries to the complainant side which clearly shows that there had been a brick batting exchange from both sides and a stone is a weapon which in the ordinary course of nature is not likely to cause death, as such, the conviction of Muhammad Aslam appellant is altered from Section 302/34 FPC to Section 316 PPC and he is held liable to pay Diyat amounting to Rs.2,02,158/- and also punished with imprisonment of five years R.I. Zafar appellant is acquitted of the charge u/S. 302/34 PPC but his conviction u/S. 324 is maintained and he is sentenced to five years R.I. And to pay a fine of Rs.5,000/-to the legal heirs of the deceased and in default to undergo R.I. For three months.
Benefit of Section 382-BCr.P.C. Is extended to the appellants.