' This appeal is directed against judgment, dated 30-10-1985 passed by Mian Muhammad Nawaz Naikoka'ra, Sessions Judge, Rajanpur wherein four accused persons were sent up to face trial namely Ghulam Qasim, Abdul Ghafoor, Talib Hussain and Qadir Bakhsh under sections 302/34 and 307/34, P.P.C. For committing murder of Aziz Muhammad and for murderous assault on Bakht All P.W. On conclusion of the trial the learned Sessions Judge convicted all the accused persons who were appellants, under section 302/34. P.P.C. And sentenced them to undergo imprisonment for life with a fine of Rs,2.000 each in default to further undergo R.I. For six months each. They were also convicted under section 307, P.P.C. And sentenced to undergo R.I. For seven years each with a fine of Rs,1,000 each. In default of payment of fine to undergo further R.I. For three months each.
2. All the convicts filed Criminal Appeal No,193 of 1985 but during the pendency of appeal Talib Hussain and Qadir Bakhsh appellants have expired therefore, appeal to their extent stands abated under section 431, Cr.P.C. The appellants had been sentenced to imprisonment as well as fine under section 302 the amount of fine imposed on each accused is Rs,2,000 and under section 307, P.P.C. Rs,1,000 each. As such, each of the appellant is liable to pay Rs,3,000 each. The learned counsel submits on instructions that no one on behalf of the said appellants have contacted him to pursue the appeal, therefore, the appeal to ' their extent is not pressed and as such dismissed.
The sentence of fine, however, remains intact and it will be recovered from the estate of the deceased appellants if any left by them.
' The learned counsel has pressed bail on behalf of Ghulam Qasim and Abdul Ghafoor appellants.
3. The prosecution version in brief as disclosed in the F.I.R. Exh.P.F. Is that on 15-3-1983 Bakht Ali complainant along with his son Aziz Muhammad had gone to Civil Hospital, Rajanpur to enquire about that health of Allah Yar Sohrani at about noon time. After some time the complainant and deceased Aziz Muhammad in the company of Ihsan Bakhsh and Adil P.Ws. Went to Bath of Rajanpur for making some purchase. When they reached near the house of Ajmal Khan Gopang all of a sudden Qasim appellant carrying iron rod. Qadir Bakhsh appellant armed with Chhuri, Ghafoor appellant empty handed and Talib Hussain armed with Soti emerged therefrom. Ghafoor raised Lalkara and caught hold of Aziz Muhammad deceased. Ghulam Qasim inflicted blows with iron rod on his forehead. Thereafter, Talib Hussain gave a Soti blow at the back of Aziz Muhammad who fell down. He was lifted by Talib Hussain, Ghafoor and Qasim and Qadir Bakhsh inflicted Chhuri blow at the neck of Aziz Muhammad deceased who tried to ward of the blows. When complainant came to his rescue he was given Soti blow by Talib Hussain appellant. Qasim appellant also inflicted blow on the left hand's fingers of the complainant. The occurrence was witnessed by Adil, Hussain Bakhsh and Isa P.Ws. After the occurrence all the accused-appellants tried to decamp with their respective weapons but Ghulam Qasim and Ghafoor appellant were apprehended by the said P.Ws. On the spot after covering some distance. Aziz Muhammad succumbed to the injuries at the spot. Bakht Ali complainant made statement Exh.P.F. At the police station.
4. The motive as alleged by the prosecution is that 5/6 months prior to the occurrence the uncle of Qasim appellant had been murdered in which Muhammad Afzal son of the complainant was challenged. As a sequel to that murder the present occurrence took place.
5. The investigation was taken up by Raja Muhammad Basharat, S.-I./S.H.O., Rajanpur, P.W.10. He visited the spot conducted the preliminary investigation at the occurrence; collected blood- stained earth from the spot; prepared injuries statement and inquest report of the deceased; also got prepared site plans from the Draftsman. The dead body was also dispatched for post-mortem examination. Apart from that he also took into possession a pair of shoes P.7 belonging to Talib Hussain accused. On conclusion of the investigation he submitted challan against all the four accused persons.
6. The prosecution in order to prove its case examined ten witnesses in all. During the trial Dr. Saeed Ahmad was examined as P.W.6 and stated to have found the following injuries on the person of Bakht Ali complainant:--
(1) A lacerated wound on the left side of scalp 5.0 c.m. x 1.0 c.m. x bone deep 9.0 c.m. Above the left ear. Advised X-Ray skull A.P. Lateral.
(2) Complains of pains left hand, X-Ray left hand A.P. Lateral.
' The said P.W. Also conducted the post-mortem examination of the deceased and found the following injuries on his person:--
(1) Lacerated wound on the right side of forehead 7-1/2 c.m. x 1.5 c.m. Causing fracture of skull bone 2-1/2 c.m. Above the right eye.
(2) Lacerated wound 5.0 c.m. x 1.5 c.m. x fracture of skull bone on the occipital region of scalp 7-1/2 c.m. From the right ear.
(3) An incised wound 12-1/2 c.m. x 5.0 c.m. Going deep and cutting the muscle and major blood vessel on right side of neck in middle.
(4) An incised wound on front of neck on thyroid cartilage 10.0 c.m. x 1.5 c.m. Going deep cutting the trachea.
(5) Incised wound 3.5 c.m. x 1.5 c.m. x skin deep just below the chin.
(6) Incised wound 3.5 c.m. x 1.0 c.m. Going deep cutting down the trachea just above injury No,4.
(7) An incised wound 1/2 c.m. x 1-1/4 c.m. Skin deep closed to injury No .6 .
(8) An abrasion on the front of left shoulder joint.
(9) An incised wound 1.5 c.m. x 1/2 c.m. x skin deep on the dorsum of left wrist joint.
(10) Two incised wounds 1.5 c.m. x 0.25 c.m. Skin deep each on dorsum of right wrist joint.
(11) An incised wound 0.25 c.m. x 0.25 c.m. Skin deep on the' dorsum of right thumb.
' The eye-witness account was given by Bakht Ali' complainant P.W.7, Isa Khan P.W.8 and Adil P.W.9.
The rest of the P.Ws. Are of formal in nature except the witnesses relating to recovery. The incriminating recovery P.8 related to Qadir Bakhsh who has since died. The same is not of much relevance to the present appeal. In nutshell the prosecution case rests on the testimony of eyewitnesses account, evidence of recovery, medical evidence, and evidence of motive. The aforesaid eye-witnesses made the statements in line with the F.I.R. And as such supported the prosecution version. The evidence of motive was given by Bakht Ali P.W.7 and he reiterated the facts regarding motive which have been noted above.
7. After close of the prosecution evidence, the same was put to the accused persons under section 342, Cr.P.C. All the accused persons including the appellants denied the allegations made against them and also denied the effecting of any recovery from them. It was, however, stated that murder was committed by some unknown persons during the night and they were falsely implicated on account of enmity. On a question as to why the P.Ws. Have deposed against them, the answer was that due to their relationship with the complainant party. All the four accused including the appellants made similar statements. No evidence in defense was produced by any of the accused.
8. The learned counsel for the appellants has argued with vehemence that the prosecution evidence comprises of the witnesses who were related to the complainant and deceased and were also inimical, therefore, no safe reliance can be placed on their testimony unless any independent corroboration is furnished by the prosecution. In the alternative, it was argued that taking entire facts and circumstances of the case into account it appears that the murder was not the result of pre-planned or pre-concerned attempt of the accused but occurred on account of sudden flare up at the spot. In this regard he has argued that enmity in between the parties has been admitted by the prosecution itself. Place of occurrence also suggests that the accused persons could not have anticipated that the deceased along with complainant and other witnesses would be passing that way. It is, therefore, argued that the complainant and the accused party had a chance encounter and during that occurrence the deceased and the complainant were injured. It has been further added that had all the accused persons intended to commit murder of Aziz Muhammad then it impossible to believe that Abdul Ghafoor would have accompanied them empty handed and Ghulam Qasim would have carried only iron rod which can hardly by termed as a weapon of offence. Similarly Talib Hussain deceased appellant was carrying only a Soti (stick). All these facts when taken together strongly suggest that there was no pre- planning or premeditation and the appellants did not act in furtherance of their common intention.
Nothing has been stated by the prosecution as to how and in what manner the assault was initiated and what was igniting cause as a result of which Aziz Muhammad lost his life and Bakht Ali received injuries. Taking stock of all the facts together, the contentions raised by the learned counsel is not without force. It is very hard to believe that four persons if had planned to commit murder of their enemy would be carrying weapons like rod, stick and one would be just empty handed.
9. The learned State Counsel when confronted with the contentions has argued that Bakht Ali P.W.
Being injured and father of the deceased cannot be disbelieved. His presence at the place of occurrence stands admitted and he being elderly person his testimony carries much weight. It is true that Bakht Ali P.W.7 was definitely present at the place of occurrence and his deposition that Aziz Muhammad was murdered by Qadir Bakhsh cannot be ignored. However, considering the ambient circumstances and the facts of the case it cannot be held that Aziz Muhammad was murdered in furtherance of common intention of all the accused. In that event individual liability of each of the accused has to be determined.
10. I have considered the arguments and perused the record. Qadir Bakhsh and Talib Hussain who were armed with Chhuri and Soti respectively have been stated to have caused injuries on the person of deceased and the complainant. As already observed appeal on their behalf has not been pressed. The same stands dismissed. As regards Abdul Ghafoor he was adinittedly empty handed. It appears highly improbable that any person would have associated for commission of murder and he would not carry any weapon. His participation is, therefore, seems to be doubtful.
He is extended the benefit of doubt and acquitted of the charge against him.
' Qua Ghulam Qasim appellant he was carrying iron rod P.4 and according to the prosecution he inflicted blows to Bakht Ali complainant on the finger of his left hand and is alleged to have caused blow with the iron rod on the forehead of the deceased. According to the doctor, the injuries on the forehead and right side of the head are grievous caused with the blunt weapon.
' His offence would, therefore, fall under section 307, P.P.C. However, the record shows that he was arrested on 16-3-1983 i,e, next date of the occurrence which took place on 15-3-1983. He remained in custody upto 3-10-1985 when his conviction was recorded. He filed appeal and on 8-11-1987 his sentence was suspended and he was admitted to bail. Since then he stands released on bail. He has as such undergone judicial confinement for about four years and eight months. His sentence of imprisonment of life is, therefore, reduced to the sentence already undergone by him. He will, however, pay fine of Rs,1.000 and in default to undergo further R.I. For three months.
11. This appeal is partly accepted and disposed of in the above terms.