IFTIKHAR HUSSAIN CHAUDHRY, J.- Murder Reference No. 168/1992 and Criminal Appeal No. 399/1992 shall be disposed of by this judgment.
2. Saleh Muhammad, Imtiaz Ahmad and Fayyaz Ahmad were convicted for offence under Sections 302/307/34 PPC and Saleh Muhammad and Imtiaz Ahmad were awarded death sentence on two counts and a fine of Rs. 20,000/- each. In the event of default they were to suffer three years' R.I. In case of realization of fine, half of the fine was ordered to be given to the heirs of the deceased.
Fayyaz Ahmad appellant was awarded imprisonment for life and a fine of Rs. 10,000/-, and in default he shall further undergo rigorous imprisonment for two years. After realization of fine half of the same was ordered to be given to the heirs of the deceased. Learned trial Court also convicted all the three appellants under Section 323 PPC and awarded them sentence of one years' R.I. Each, and a fine of Rs. 1000/- each. In case of default in payment of fine, they shall further suffer rigorous imprisonment for three months. Fayyaz Ahmad appellant was extended benefit of provisions of Section 382-B Cr.P.C, by judgment dated 30.4.1992 passed by Additional Sessions Judge, Kasur in case FIR No. 216, dated 9.11.1982 under .^Sections 302/307/34 PPC registered at Police Station, Chunian District Kasur.
2. Occurrence in this case took place at about 4.30 p.m. On 9.11.1982 in the area of village Jandwala Police Station Chunian District Kasur, and case FIR No. 216/1982 Ex.PN on the statement of Muhammad Tufail PW. 10 was registered at Police Station Chunian.
3. The facts of the prosecution case as narrated by Muhammad Tufail complainant PW. 10 are as under:- "About one year and 10 months back at about 4.30 p.m., I alongwith my father Asghar Ali and Inayat Ali deceased were busy in thrashing the paddy crops, Amjad my cousin was also sitting there on a 'Watt'. The accused persons present in the Court were passing on the 'Watt' whereupon said Amjad was sitting. Fayyaz accused gave a kick . To Amjad. Whereupon Amjad started weeping.
Whereupon my uncle Inayat Ali deceased had enquired from Saleh Muhammad accused as to why Amjad had been given a kick blow-then the accused persons exchanged abuses with Inayat Ali deceased and left towards their house. After few minutes Saleh Muhammad and Riaz accused armed with clubs whereas Imtiaz and Fayyaz accused armed with 'surya' came to us. Asghar Ali my father entreated th accused persons but the accused persons started the assault. Imtiaz and Fayyaz accused persons inflicted injuries with surya on the head of Asghar Ali whereupon he fell down and thereafter Saleh Muhammad gave push blow with a club to Asghar Ali deceased on his fore-head whereupon Inayat deceased, myself and Aslam PW intervened whereupon Saleh Muhammad accused gave club blow which hit on the head of Inayat deceased whereupon he fell down. Aslam PW and myself also entreated the accused persons. Imtiaz accused gave a "surya" blow which hit below of his right eye. Then Riaz accused also gave club blow which hit on the side of his left thigh. He fell down and Saleh Muhammad gave club blow on his head. Fayyaz accused gave surya blow to me which hit on my left arm. Saleh Muhammad accused also gave a club blow to me which hit on my upper part of right arm. I fell down. Wazir Ali and Mst. Bashiran PW also arrived at the spot and they witnessed the occurrence. The accused persons had left from the spot.
Asghar Ali, Inayat myself and Aslam were carried by Wazir Ali and Mst. Bashiran Bibi to the Haveli of Arian Wali where Asghar Ali died due to the injuries.
The motive behind the occurrence as stated by the complainant . Was that about one and a half month prior to the occurrence a dispute arose between the parties and the accused persons threatened us with dire consequences. For this reason the accused persons have committed the murder of Inayat Ali and Ashgar Ali deceased. Leaving Asghar Ali deceased and the injured PWs. At my home, I left for the Police Station Chunian where my statement (Ex.PN) was recorded which was read over to me and I signed the same in token of its correctness."
4. Abdul Shakoor, Inspector PW14 recorded the FIR Ex.PN on the statement of Muhammad Tufail complainant. Thereafter he went to the place of occurrence and prepared inquest report of Asghar Ali deceased Ex.PQ. He had also prepared injury statement of Inayat Ex.PR, and that of Aslam Ex.PS.
He had collected the blood-stained earth fr6m the place where Asghar Ali and Inayat Ali deceased were injured vide memos. Ex.PC and Ex.PD. He had recorded the statements of PWs. Under Section 161 Cr.P.C. The Inspector/SHO arrested all the accused on 11.11.1982 and recovered crime articles from their possession vide memos. Ex.PK, Ex.PL and Ex.PM. All the accused were found guilty and report under Section 173 Cr.P.C, was submitted against them in the Court of Addl. Sessions Judge, Kasur.
5. The prosecution in order to prove its case produced 15 witnesses at the trial.
6. Dr. Iftikhar Mirza, Medical Officer PW15 had medically examined Muhammad Tufail on 9.11.1982 at 8.30 a.m. And found following injuries on his person:
(1) Lacerated wound 2 cm x 1/2 cm x scalp deep on right parietal region of head.
(2) Contusion 10 cm x 4 cm on the back of left fore-arm upper part.
(3) Contusion 3 cm x 2 cm on the back of right arm lower part.
The witness also conducted medical examination of Muhammad Aslam on 10.11.1982 at 3.15 a.m.
And noted the following injuries on his person:
(1) Lacerated wound 4 cm x Vi cm x bone deep below right lower eye lid.
(2) Abrasion 3 cm x 1 cm on the outer side of left hip joint.
(3) Area contused 8 cm x 8 cm on the outer side of left thigh middle part.
(4) Contusion 10 cm x 2 cm on the back of left arm lower part.
On the same day the examination of dead-body of Inayat Ali was also performed by the same witness and found the following injuries on his body.
(1) Lacerated wound 4 cm x 1/2 cm x scalp deep on the anterior part of valt of scalp near hairy margin.
(2) Area swollen 8 cm x 2 cm on the temporal region.
(3) Contusion 8 cm x 2 cm on the outer side of left arm upper part.
(4) Contusion 10 cm x 2 cm on the front of chest crossing the midline below the nipple.
(5) Area contused 8 cm x 8 cm on the outer side of right elbow.
(6) Area contused 6 cm x 6 cm on the back of right hand.
The witness tendered in evidence copy of MLR as Ex.PK.
On the same day at 3.00 p.m. Post-mortem examination on the dead-body of Asghar Ali was conducted and the medical officer found the following injuries:
(1) Lacerated would 3 cm x 1 cm bone deep on the right parietal region of head.
(2) Area contused 6 cm x 6 cm on the left temporal region. Left eye-bluish and swollen.
(3) Area contused 6 cm x 6 cm on the right temporal bone.
(4) Area contused 4 cm x 4 cm on the left parietal bone.
The medical officer tendered in evidence copy of MLR as Ex.PY.
7. Munshi Allah Dia Patwari PW6 prepared site plan Ex.PD, Ex.PE and Ex. P/I. Muhammad Akram PW9 had testified about the recoveries of Dangs Ex. P7, Ex. P8, Surya Ex. P9 and Ex.P10 recovered at the instance of Saleh Muhammad, Riaz Ahmad, Imtiaz Ahmad and Fayyaz Ahmad accused vide memos. Ex.PJ, Ex.PK, Ex.PL and Ex.PM.
8. Muhammad Tufail complainant appearing as PW. 10 and testified in terms of narrative contained in the FIR Ex.PN. Muhammad Aslam who was injured in the incident appeared as PW.
11. He corroborated the deposition of Muhammad Tufail complainant PW.
10. Mst. Bashiran Bibi PW. 12 was another eye-witness of the occurrence. She had also corroborated the testimony of Muhammad Tufail complainant and supported the prosecution case.
9. Abdul Shakoor, Inspector/SHO appeared as PW14. He went to the spot after receiving information about the incident and later took various- steps towards investigation which have already been noted above.
10. Ibrahim PW1, Iqbal PW2, Ghulam Hussain PW3, Habib Ahmad PW4, Sawab Khan, FC PW5, Qalab Din, ASI PW7, Zulfiqar Ali, HC PW8 and Muhammad Sharif, Constable PW13 were formal witnesses.
11. In their statement recorded under Section 342 Cr.P.C, the accused professed innocence. Saleh Muhammad accused took the following stand: "I and my co-accused have been falsely involved in this case merely on suspicion. About one and half year before the occurrence one Ahmad Din Arain obtained the land from Chhota Khan and Surif Bano Meo on lease which is adjacent to the land of complainant party. He started cultivating the land and had been living in Haveli of complainant party. He contended illicit intimacy with Mst.
Rani daughter of Asghar Ali deceased and also abducted her. Asghar Ali, Inayat deceased and Tufail etc. Pursued him and he alongwith Mst. Rani were caught at Bus stand. Ahmad Din was given beating by them and the girl was brought back. Thereafter Ahmad Din used to come around the Haveli of the complainant party for taking Mst. Rani again and the complainant party used to make assault on him. It was late evening of the day of occurrence when Mst. Rani left the Haveli of the complainant party and came running during the darkness towards our Haveli. Inayat Ali and Asghar Ali deceased armed with Dangs followed her and caught her with some unknown person had fight with them, in which both Asghar Ali and Inayat received injuries. Lateron Muhammad Tufail PW lodged a false report against us merely on suspicion that we were giving shelter to Ahmad Din who had abducted their daughter."
The accused also produced Shaukat Ali, Revenue Panvari as DW1 in their defence.
12. Learned trial Court believed the prosecution case on the basis of evidence of motive, ocular account, medical evidence and convicted and sentenced the appellants as noted above.
13. Learned counsel for the appellants submitted that the appellants had absolutely no motive to have committed the offence and they were implicated for the reasons that they supported Ahmad Din who had abducted woman of the complainant party and since he was not resident of the village in those days, the appellants were falsely implicated in the case. It was contended that medical evidence was in conflict with the ocular account and the witnesses also ascribed injuries to Riaz acquitted co-accused. It was submitted that case against the appellants was not free from doubt and, hence, they deserved acquittal. Learned counsel for the State supported the judgment of the trial Court and contended that the appellants were rightly convicted.
14. The prosecution claimed that about 1V4 month prior to the incident, the parties had quarreled with one another and the appellants had threatened the complainant party with dire consequences and that incident took place in that background and the appellants had a motive to attack the deceased as well as his sons who were working in the fields. Mo worthwhile evidence regarding earlier occurrence was brought on record and it was a bald assertion only. A proper perusal of the record would show that the parties were not on inimical terms prior to the present incident.
15. It has been contended on behalf of the appellants that they were substituted for certain culprits who had helped Ahmad Din and they had not taken part in the incident at all. As observed above there was no background of enmity between the parties and as such their substitution for real culprits is a hollow claim. It was a day-time occurrence. The injured PWs had supported the prosecution case and their testimony by and large had proved the prosecution case substantially.
16. The occurrence in this case started when Amjad a young lad belonging to the complainant party was hit by Fayyaz accused while he was sitting on a ridge. The lad started crying and the parties exchanged abuses and it is the claim of the prosecution that the accused went to their house, emerged there from carrying clubs and iron-rod and attacked the deceased and the witnesses. The introduction of later part of the story by which it has been tried by the prosecution to set up a premeditated attack on the deceased and the PWs appears to be a fabrication.
Examination of material on record in proper perspective would reveal that Amjad, cousin of the complainant was sitting on the ridge and probably was hit by Fayyaz accused accidently and outburst of anger/pain expressed by Amjad, attracted the deceased, complainant and PWs.
Whereafter both the parties exchanged abuses and then the accused who were carrying agricultural implements with them belaboured the complainant party. The nature of injuries found on the body of the deceased and persons of the PWs lends credence to the above view. It would be seen that it was not a premeditated or pre-planned attack. The occurrence took place suddenly and in the ensuing but, the complainant came out worse than the accused. This is a case, therefore, which would not warrant extreme penalty of death to be imposed on the convicts.
17. For the foregoing reasons we maintain the conviction of the appellants for offences under Sections 302/323/34 PPC. The sentence of death imposed on Saleh Muhammad and Imtiaz Ahmad on account of absence of motive and the incident being sudden flare up is converted into imprisonment for life. They shall also pay a sum of Rs. 10,000/- each as fine and in default shall suffer two years' R.I. The amount of fine if recovered shall be given to the legal heirs of the deceased. Conviction and sentence imposed on Fayyaz Ahmad appellant by the trial Court is maintained. The sentence awarded to appellant under Section 323 PPC is also maintained. All the sentences however, shall run concurrently. Benefit of provisions of Section 382-B Cr.P.C, shall be extended to the convicts.
18. Criminal appeal with above modification in conviction and sentence is dismissed.
19. Murder reference is answered in the negative.