' KHALIL-UR-REHMAN RAMDAY, J.--- Sabir Hussain, Banaras, Ghulam Rabbani and Muhammad Razzaq had been tried by a learned Additional Sessions Judge at Rawalpindi for having committed the murder of Altaf Hussain and for having caused injuries on the persons of Shabbir Hussain and Mst. Fazal Jan. Through his judgment, dated 3-8-1993, the said learned Judge acquitted Banaras, Razzaq and Ghulam Rabbani; convicted the said Sabir Hussain under section 302, P.P.C. And punished him with death and a fine of Rs,50,000 or two years' R.I. In default of payment of fine. Half of the amount of fine was directed to be paid to the heirs of Altaf deceased. However, this Sabir Hussain had been acquitted of the charge under section 323, P.P.C.
2. Murder Reference No,208 of 1993 seeks confirmation of the said sentence of death while Criminal Appeal No,153 of 1993 filed by Sabir convict calls in question the above noticed conviction and punishments recorded against him. Munir complainant approached this Court through Criminal Revision No,113 of 1993 and impugns the acquittal recorded in favor of the abo\'ementioned acquitted accused persons. All these matters are being disposed of together through this single judgment.
3. The occurrence in question had taken place on 23-7-1989 at about 5-30 a.m. In and near the field of one Mst. Walayat Bibi in the area of Mauza Adhi about 8 kilometres from Police Station Jatli and the said occurrence had been reported by Munir Hussain complainant to Muhammad Aslam, S.-I. (P.W.12), at about 8-00 a.m. In Civil Hospital, Gujar Khan.
4. Narrating the occurrence and the background leading thereto, it had been mentioned by Munir complainant that he was a resident of Mauza Adhi and that about 100 yards away from their house in the said village, was the house of one Qurban Hussain who had friendly relations with the complainant's brother, namely, Shabbir Hussain. He had added that Sabir Hussain appellant and other relatives of the said Qurban Hussain had suspicion that complainant's said brother had committed unnatural offence with the said Qurban Hussain on account of which, they beat up the complainant's brother on the day prior to the day of occurrence at about 6-30 p.m. Because of which grievance, the womenfolk of the complainant's family had given abuses to the members of the appellant party. He had alleged that on the day of occurrence, Sabir appellant armed with a .12 bore gun, his brother, Lal Hussain armed with a Sota, Ghulam Rabbani empty handed, Abdul Razzaq also armed with a Sota and Banaras empty handed came near the house of one Ghulam Hussain and raised a Lalkara that they wduld teach a lesson to the complainant party because of the abuses which their women-folk had given to them whereupon, the complainant empty- handed accompanied by Shabbir armed with Sota, Saghir empty-handed and Altaf armed with a Sota of the complainant party also came out and when they reached in the field of Mst. Walayat Bibi, both the parties started inflicting injuries on each other with Lathis and brick bats. The complainant had further alleged that Lal accused dealt a Lathi blow on the left wrist of Altaf; Ghulam Rabbani accused hurled a stone at the said Altaf which injured his right index finger; in the meantime, their mother Mst. Fazal Jan rushed to rescue the complainant party who was given a Sota blow by Abdul Razzaq while Banaras hit her with a stone and that since the said assailants were large in number, therefore, the complainant party rushed into their Haveli to save their lives.
The complainant had further claimed that in the meantime, Sabir appellant who was armed with a gun stood outside the Southern wall of the complainant's Haveli and fired a shot at Altaf deceased which hit him at his right flank who consequently, fell down. The complainant had further disclosed that he picked up his licensed gun from his house and fired 3/4 shots at which the abovementioned assailants retreated. The complainant had further mentioned that they carried his brother Altaf Hussain and his mother Mst. Fazal Jan to Gujar Khan Hospital but Altaf succumbed to the injuries on way to the said hospital.
5. Muhammad Aslam, S.-I. (P.W.12) reached the place of occurrence and secured blood-stained earth vide memo. Exh.P.G. He had also found 4 crime empties of .12 bore gun which he had seized vide memo. Exh.P.H. And it had also been added by the said Investigating Officer that he had found one live cartridge also at the spot which he took into possession by the said memo. Exh.P.H. Blood- stained shirt P.3 of Sabir appellant was also produced before him on 23-7-1989 which was taken into custody vide memo. Exh.P.F. Munir complainant also produced his licensed .12 bore gun before the said Muhammad Aslam, S.-I. (P.W.12) which he had secured vide memo. Exh.P.L.
6. Javed Nisar Inspector/S.H.O. (P.W.11) arrested Razzaq and Banaras accused on 29-7-1989 out of whom, Banaras produced a Sota P.6 which was taken into possession vide memo. Exh.P.K. He also arrested Ghulam Rabbani accused on 1-8-1989. Sabir accused was arrested by Muhammad Aslam 5.-I. (P.W.12) on 23-7-1989.
7. On 7-8-1989 Abdul Hameed F.C. (P.W.2) carried and deposited with the Forensic Science Laboratory a parcel containing crime-empties and another parcel containing a gun. Through a report Exh.P.T. Of the said Laboratory, the two crime-empties had beet: found to have been fired from a .12 bore gun sent to the said laboratory.
8. When confronted with the prosecution case under section 342, Cr.P.C. Sabir appellant pleaded that on the day of occurrence Rs, 23-7-1989 Shabbir P.W. Had tried to commit sodomy with Qurban at about 4-00 a.m. In Kassi where the said Qurban had gone to ease himself; that oti his hue and cry, the said Shabbir P.W. Was beaten up; that about 5-30 a.m. The said appellant alongwith Ghulam Rabbani accused and his uncle Barkhurdar went to plough the land of Mst. Walayat Bibi which was under cultivation with the said Barkhurdar; that on account of beating given to Shabbir P.W. In the early hours of the morning, Munir complainant armed Jith a gun; Altaf armed with a stick and Shabbir P.W. Armed 'with a hatchet trespassed into the said land and launched an assault on the appellant party and caused injuries on their persons; that on hue and cry raised by the appellant party, Lal accused and others were also attracted to the spot where Mst. Fazal Jan also arrived; that Lal accused pelted stones which hit Mst. Fazal Jan and Altaf deceased; that in the process, Munir complainant fired a shot from his gun, which accidently hit Altaf deceased who was standing close by who consequently died and that the appellant party informed the police of the occurrence in question but the said police in collusion with the complainant party fabricated a false story and implicated the appellant and others as the culprits.
9. The defence version of the occurrence in question is that Shabbir had committed sodomy upon Qurban at about 4-00 a.m. Where the said Shabbir P.W. Was allegedly beaten up and that it was in retaliation that the complainant party trespassed into the land of Mst. Walayat Bibi which was being allegedly ploughed by the appellant and others at about 5-30 a.m. Where they mounted an assault on the appellant party and further that it was in the melee which ensued that Munir complainant fired from his gun which fire accidently hit his brother Altaf deceased who consequently died.
10. If the complainant party was to mount an assault on the appellant party on account of beating given to Shabbir P.W. Then it is not understandable as to why they should have taken about one and a half hour to make preparation for the same. The defence had also not brought anything on record to establish that the land of Mst. Walayat Bibi was untie' cultivation with Barkhurdar and there was also nothing on record to demonstrate as to why the assistance of Sabir appellant and Ghulam Rabbani was required by the said Barkhurdar to cultivate the land in question. The time of occurrence Rs, 5-30 a.m. In the days of July is well after sun rise and it is not believable that at that hour of broad daylight some body would handle his gun in a manner which would kill his own brother. Therefore, the defence plea does not appear to be reasonable or plausible.
11. The prosecution, claim is that Shabbir P.W. Had been beaten up by the appellant party in the evening pri'r to the day of occurrence when the womenfolk of the complainant party had given abuses to the members of the appellant party who had beaten up Shabbir P.W. These abuses was set up as the motive for the appellant to launch an attack on the complainant party. This part of the prosecution story also does not inspire confidence. The appellant party had beaten up Shabbir P.W. And had, thus, settled the score on account of the alleged sodomy matter and mere abuses by the women-folk of the complainant party cannot be considered sufficient to provoke the appellant party to the extent that they would decide to launch a planned aggression on the members of the complainant party. In any case, it is also not believable that if aggression had to be launched by the appellant party then they would select the early hour of the day for the purpose as if it was an army which was to launch an attack on them.
' It may be added here that Sabir appellant and Ghulam Rabbani accused from the appellant party had also received injuries on their persons as declared by Dr. Tariq Mehmood (P,W.1),
12. It does appear that both the parties were not willing to take the Court into confidence about the actual truth relating to the matter in question and we are, thus, compelled to draw our own inferences from the evidence which was available on record as permitted by Syed All Bepari's case PLD 1962 SC 502.
13. It is a fact admitted on both sides that the actual cause leading to the _occurrence in question was the illicit relations or suspicion of such relations between Shabbir P.W. And Qurban Huscain of the appellant party. It is also on record through Dr. Tariq Mehmood (P.W.1) t4.At Shabbir P.W. Had received five injuries on his person which were, howler, bruises on various parts of his body. He had been medically examined on 23-7-1989 at about 8-30 a.m. And according to the said doctor, the injuries hau been caused within three to six hours before the said examination. His motile' Ms', Fazal Jan had also been examined at the same time and the injuries found on her person were also found to have been caused within three to six hours of her tr medical examination which was at about 8-30 a.m. On the day of occurrence Rs, on 23-7-1989. Similar was the position of the injuries found on the person of SaLir appellant and Ghulam Rabbani accused who had also been medically examined by the said doctor at the same time when Shabbir P.W. And his mother Mst.
Fazal Jan had been medically examined. It, thus, stands established on record that the injuries which had been received by Shabbir P.W. Had not been received on a day prior to the day of occurrence as claimed by the prosecution but had been received by him at around the same time when other injured persons of the occurrence in question had received injuries on their bodies.
14. As has been mentioned above, the medical exanimation of these injured persons had taken place at about 8-30 a.m. On the day of occurrence and the injuries were stated to have been received by them within three to six hours before the said examination which could reasonably lead to an inference that the injuries had been received around 5-00 a.m. On the day of occurrence. In view of these facts and circumstances, we are led to hold that it was on Shabbir P.W.
Having been detected to be committing sodomy with Qurban and the beating given to Shabbir P.W. That the two parties got confronted with each other which resulted into the injuries caused on the bodies of the persons abovementioned as also which led to a fire-arm injury on the person of Altaf deceased.
15. Consequently., we find that no exception could be taken to the finding of guilt recorded against Sabir appellant.
16. This brings us to the question of confirmation or otherwise of the sentence of death.
17. Since we have held that the occurrence in question was not a, planned attack launched by the appellant party, including Sabir appellant and even according to the prosecution, Sabir appellant had appeared at the scene when members of the two parties were injuring each other, therefore, we would consider it unsafe to confirm the sentence of death awarded to the said Sabir appellant.
The sentence of death awarded to him is, therefore, aat confirmed 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 sections 382-3 of the Cr.P.C.
18. Criminal Appeal No,153 of 1993 is disposed of accordingly and since the sentence of death awarded to Sabir appellant has been set aside, therefore, Murder Reference No,208 of 1993 is answered in the negative.
19. Having examined the entire record, we find no merit in Criminal Revision No,113 of 1993 which is accordingly dismissed.