' This judgment will dispose of Criminal Appeal No, 31 of 1996 and Criminal Revision No, 113 of 1996.
Criminal Appeal has been filed by Muhammad Ayub alias Ayuba and Mola Bakhsh, who are real brothers inter se, alongwith one Ijaz Ahmad, were convicted and sentenced by learned Additional Sessions Judge, Sargodha on 8-1-1996 as under:
(1) Moula Bakhsh appellant was convicted and sentenced under section 316, P.P.C., to undergo 14 years R.I. As Tazir with the direction to pay Rs,1,70,610 as "Diyat" amount for hitting a brick bat, which resulted the death of Ghulam Rasool, deceased.
(2) As far as, Muhammad Ayub and Ijaz Ahmad appellants are concerned they were convicted and sentenced under section 337-A(ii), P.P. C . , to undergo three years R.I. Each as Tazir with the direction to pay Rs,8530.50 as 5% of the "Diyat" amount for causing injuries on the person of Khizar Hayat.
' Benefit of section 382-B, Cr.P.C., was also granted to the appellants.
2. It may be noted here, that co-accused of the appellants namely Muhammad Hayat was acquitted by the learned Trial Court as he was accused of abetment.
3. The occurrence in this case took place on 29-10-1992 at 5-00 p.m. Near the house of the deceased situated at Moazamabad, District Sargodha while the F.I.R., was lodged by Allah Bakhsh P.W.9 in Police Station Kot Momin, at 3-30 p.m. The said Allah Bakhsh is the maternal cousin of the deceased. Ghulam Rasool, deceased succumbed to his injuries on 12-11-1992.
4. Brief facts of the prosecution case are that on 29-10-1992 at about 5-00 p.m. Ghulam Rasool deceased and Khizar Hayat injured P.W., were standing on the road side near their house in village Moazamabad Tehsil Bhalwal, District Sargodha. Meanwhile, Ayub and Ijaz Ahmad accused carrying iron rods and Mola Bakhsh accused empty handed reached there. They raised lalkara and challenged Ghulam Rasool deceased that they would teach him a lesson for restraining Hayat co- accused from visiting the house of Mst. Fatima and they would not leave him alive. Mola Bakhsh accused picked up a brick bat and hit Ghulam Rasool with it on the right side of his forehead.
Ghulam Rasool fell down and, thereafter, Ayub accused gave him two blows with iron rod on his eyes and nose. Ghulam Rasool became unconscious. Khizar Hayat P.W. Stepped forward to rescue Ghulam Rasool whereupon Ayub accused gave two iron rods blows to Khizar Hayat on his head.
Ijaz accused also gave one iron rod blow to Khizar Hayat on the left side on his head. Khizar Hayat P.W. Raised alaram which attracted Allah Bakhsh complainant and one Ahmad son of Khan P.Ws.
They witnessed the, occurrence and rescued Ghulam Rasool and Khizar Hayat from the accused persons.
5. Motive of the occurrence as given in the F.I..R., is that Muhammad Hayat accused had illicit relations with Mst. Fatima who is sister of Ghulam Rasool deceased and mother of Ijaz accused.
Ghulam Rasool on coming to know about it prohibited Hayat accused one day before their visiting the house of Mst. Fatima. Ijaz accused took it ill and there was exchange of abuses between Ijaz accused and Ghulam Rasool deceased. On account of above, the accused persons attacked and injured Ghulam Rasool and Khizar Hayat at the instance of Muhammad Hayat accused. Ghulam Rasool and Khizar Hayat in injured conditions were brought to Civil Hospital Kot Moman and, thereafter, in Civil Hospital, Sargodha.
6. The Investigating Officer after reaching at the spot recovered blood-stained brick bat P.3 and took into possession vide memo. Exh.P.H. All the three appellants were arrested in this case by Muhammad Yousuf Inspector P.W.12 on 18-11-1992. Muhammad Ayub appellant led to the recovery of iron rod P.2 on 21-11-1992, which was taken into possession vide memo. Exh.P.D. Ijaz Ahmad .Appellant led to the recovery of iron rod P.1 on the same day, which was taken into possession vide memo. Exh.P.0 .
7. Prosecution in order to prove its case produced 13 witnesses in all. Two C.Ws. Were also examined by the learned trial Court. Appellants while being examined under section 342, Cr.P.C., denied the occurrence and claimed that it was the complainant party which was aggressor. Two eye- witnesses namely Allah Bakhsh P.W.9 complainant maternal cousin of the deceased and Khizar Hayat injured P.W.3 son of the deceased were examined.
8. Learned counsel for the appellant has read before me the prosecution evidence, the statements of the C.Ws. And statement of the appellants recorded. Under section 342, Cr.P.C. After doing this exercise, he submits that motive has been disbelieved by the learned Trial Court, that a new motive has come on record during the course of prosecution evidence, that one Mst. Shahnaz Begum real sister of Ijaz Ahmad appellant was married with one Muhammad Afzal while Ghulam Rasool who was his maternal uncle went to Muhammad Afzal and asked him to divorce Mst. Shahnaz Begum and he will give the hand of her daughter to Muhammad Afzal. Learned counsel for the appellants submits that according to the F.I.R., it was stated that Mola Bakhsh gave injury with the brick bat on the head of Ghulam Rasool while other appellant namely Ijaz Ahmad gave one blow with iron rod on the forehead of the deceased but according to the post-mortem report there is only one injury on the person of the deceased which falsefies the prosecution story. He submits that it has also come on record, that the occurrence had taken place in the house of Ijaz Ahmad appellant. He further submits that Mola Bakhsh and Muhammad Ayub are real brothers inter se and they are Muslim Sheikh by caste and have no relations with co-accused Ijaz Ahmad while Ijaz Ahmad appellant is "Lohar" by caste. He further submits that Dr. Muhammad Farooq Aziz C.W.1 had also medically examined all the appellants but their injuries have been suppressed by the prosecution.
He submits that no case is made out against the appellants and they are entitled to acquittal.
9. On the other hand, learned counsel for the State assisted by learned counsel for the complainant, who has filed Criminal Revision No,131 of 1996 submits that two eye-witnesses produced by the prosecution have proved their case against the appellants beyond any shadow of doubt. He further submits that recoveries were also affected from Ijaz Ahmad and Muhammad Ayub appellants, that there was no question of false implication of the appellants in the instant case, that Ijaz Ahmad appellant is real maternal uncle of Ghulam Rasool deceased and there was no question of false implication of Ijaz Ahmad appellant, and Khizar Hayat was son of the deceased. He submits that prosecution has proved its case against the appellants beyond any shadow of doubt.
10. I have heard the learned counsel for the parties. In the instant case, according to the F.I.R.
Exh.P.A., it was stated that Mola Bakhsh gave an injury with brick bat on the hand of the deceased but there is no such injury on the hand of the deceased. It may also be noted here, that there was only one injury on the person of the deceased which was on his forehead and the deceased was medically examined by Dr. Muhammad Afzal P.W.7. The statement of the above said doctor is mentioned below. The said doctor found the following injuries on the person of Ghulam Rasool.
' INJURIES:
(1) A lacerated wound 2-1/2 x 1/2 c.m. Bone deep on right side of forehead.
(2) Swelling on the both eyes subconjunctival haemorrage.
(3) Swelling 3 x 2 c.m. On the bridge of nose, bleading from right nosteral.
2. B.P. Was 90/60 Pulse was 95 per minute. Patient was semi conscious. Condition was serious and was dangerous to life. All the injuries were kept under observation. However, the same had been caused by blunt weapon. Probable duration of injuries was 4 to 5 hours. Exh.P.E. Is the correct carbon copy of M.L.R. Which is in his hand and signed by him.
3. On the same day, prior to examination of Ghulam Rasool at about 8-45 p.m. He medically examined Khizar Hayat son of Ghulam Rasool and found the following injuries on his person.
INJURIES.
(1) A lacerated wound 5 x 1 c.m. Bone deep with swelling 6 x 3 c.m. On top of head 7 c.m. From the hair margine.
(2) Lacerated wound 2 x 1/2 c.m. With swelling 4 x 3 c.m. Bone deep on left side of head 12 c.m. From the left ear.
(4) A lacerated wound 3 x 1 c.m. With swelling 5 x 3 c.m. Bone deep on the back and right side of head 6 c.m. From right ear.
' All the injuries were kept under observation. The injuries are by blunt weapon and duration of injuries was 4 to 5 hours. X-Rays of all the injuries was advised. Exh.P.E. Is the correct carbon copy of M.L.R. Which is in his hand and bears his signature.
' By defence counsel for Hayat and Ijaz accused.
4. After medical examination I sent both the injured to the Ward after giving emergency treatment and subsequent treatment was given by some other doctor. Injury No,2 of Ghulam Rasool injured was the effect of injury No,1 on his person. Injury No,3 is possible on the person of Ghulam Rasool due to fall on hard ground.
11. The said doctor also medically examined Khizar Hayat injured P.W.8 Ch. Akhtar Mehmood also conducted the postmortem examination on the dead body of Ghulam Rasool' on 12-11-1992 and he also found only one injury on the person of the deceased. There is a clear conflict between ocular account and medical evidence. In the F.I.R., there was three injuries which were attributed to each of the appellants but only injury was found on the person of the deceased. It has also come on record that the occurrence had taken place in the house of Ijaz Ahmad appellant. The motive is also disbelieved by the learned trial Court and during the course of prosecution evidence, another motive was brought on record and the same has been admitted by the Investigation Officer, that in fact, Ghulam Rasool, wanted that Mst. Shehnaz Begum real sister of Ijaz Ahmad appellant should be divorced by Muhammad Afzal and, thereafter, Muhammad Afzal, would marry with his daughter, then there are injuries on the persons of all the appellants and they were medically examined by Dr. Muhammad Farooq Aziz, who has appeared as C.W.1 before the learned trial Court. His statement is also mentioned below.
12. On 30-10-1992, Dr. Muhammad Farooq Aziz medically examined Muhammad Ijaz son of Muhammad Yaqoob and found the following injuries on his person.
' INJURY:
(1) An abrasion 4 x 1 c.m. On the outer part of the left arm.
' The injury was Jura Daima, duration being 18 hours and caused by blunt weapon.
13. On the same day, he medically examined Muhammad Ayub and found the following injuries on his person.
' INJURIES:
(1) Multiple abrasion in area of 2 x 1 c.m. On the tip of nose.
(2) Abrasion 2 x 1/2 c.m. On top and back of left shoulder.
(3) Swelling 2 x 1 c.m. On the left side of shoulder 6 c.m. From the left ear.
' Injuries Nos. 1 and 3 were kept under observation. While injury No,2 was declared as Jura Damia.
Injury was of about 18 hours duration and caused by blunt weapon.
14. On the same day, he medically examined Moula Bakhsh and found the following injuries on his person.
INJURIES:
(1) A lacerated wound 4 x 1/2 c.m. x bone deep on left side of head with swelling in the area of 5 c.m. x 3 c.m. Seven c.m. From left ear.
(2) Abrasion 1/2 c.m. x 1/2 c.m. On right side of forehead.
' Injury No,1 was kept under observation while injury No,2 was declared Shaja Khafifa. The injuries were of 18 hours duration, caused by blunt weapon.
15. These injuries of the appellants have been suppressed by the prosecution. In my opinion, the occurrence had taken place at the spur of the moment without using any lethal weapon by both the parties and the parties have tried to suppress their roles. First the prosecution did not disclose the injuries of three appellants and the appellants while being examined under section 342, Cr.P.C., did not say anything about the deceased and the Khizar Hayat injured P.W. Moula Bakhsh, appellant has already undergone three years and six months of sentence. His sentence is converted from section 316, P.P.C., to 302(c), P.P.C., and the sentence which he has already undergone is treated to be sufficient in the interest of justice and also keeping in view the circumstances of the case. As far as, Muhammad Ayub is concerned, he has already undergone three years and four months sentence and Ijaz Ahmad appellant has already undergone four months and 10 days sentence. Their conviction under section 337-A(ii), P.P.C., is maintained but the sentence which they have already undergone is treated to be sufficient in the interest of justice.
Appellants are on bail and they are discharged from their bail bonds. With these observations, both criminal appeal and criminal revision are disposed of.