' This judgment will dispose of Criminal Appeals Nos.1245 of 1998, 1189 of 1999, 1209 of 1998 and Criminal Revision No,554 of 1998 as all these are the outcome of one and the same occurrence.
2. The appellants in Criminal Appeals Nos.1245 of 1998 and 1189 of 1998 alongwith their other co- accused, on the private complaint by Mst.Rehmat Bibi were tried under section 302/324/148/149, P.P.C. By Special Judge, Anti-Terrorism, Sargodha Division, Sargodha and were convicted and sentenced as under vide his judgment dated 5-12-1998:--- Under section 148, P.P.C.
' Nazir Ahmad, Muhammad Younis, Muhammad Yaqub, Abdul Majid, Muhammad Ismail, Muhammad Yousaf, Muhammad Akram and Muhammad Khalil appellants are sentenced to three years R.I. Each and a fine of Rs,5,000 each under section 148, P.P.C. And in default of payment of fine to further undergo R.I. For three months each.
Under section 302/149, P.P.C.
' All the above said accused appellants were sentenced to life imprisonment each and a fine of Rs,50,000 each for committing murder of Faqir Muhammad and in default of payment of fine to further undergo R.I. For five years each.
' They were further sentenced to life imprisonment each and a fine of Rs,50,000 each for committing the murder of Nazir Ahmad and in default of payment of fine to further undergo R.I. For five years, each.
' They were further sentenced to life imprisonment each and a fine of Rs,50,000 each for committing murder of Muhammad Rafiq and in default of payment of fine to further undergo R.I.
For five years each.
Under section 324/149, P.P.C.
' Muhammad Akram and Muhammad Khalil appellants were sentenced to ten years R.I. Each and a fine of Rs,10,000 each and in default of payment of fine they shall further undergo R.I. For six months each.
' All the sentences were ordered to run concurrently while benefit of section 382-B, Cr.P.C. Was awarded to the appellants. Half of the fine, if recovered was ordered to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C.
3. A case vide F.I.R. No,185, dated 31-5-1994 was registered at the instance of Ghulam Haider P.W.9 at Police Station Saddar, Bakkar, under sections 302/148/149/337-A, II, III, IV and 337-F(V), P.P.C., in which the appellants and their co-accused, since acquitted, were nominated for commission of murder of Muhammad Nazir, Muhammad Rafiq and Fiqar Muhammad deceased and for causing injuries to Mst. Rehmat Bibi, Mst. Shabnam and Mst. Hanifan. Feeling dissatisfied with the investigation of the police Mst. Rehmat Bibi P.W. 8 filed a private complaint against the appellants and the acquitted co-accused upon which charge was framed.
4. Brief facts as stated by Mst. Rehmat Bibi P.W. 8 in her complaint are that on 31-5-1994 at about 5 p.m. The deceased Nazir and Rafiq (deceased) were coming to the dera of Faqir -Muhammad deceased (their brother) when they reached near the land belonging to one Bashir, the accused persons armed with deadly weapons came at the spot and attacked the deceased Muhammad Nazir and Muhammad Rafiq. On hearing hue and cry Faqir Muhammad deceased, the complainant (Rehmat Bibi), her mother Mst. Hanifan and her daughter Mst. Shabnam and her brother Faqir Muhammad (deceased) were attracted to the scene. Within their view Nazir accused armed with hatchet caused injuries to Muhammad Rafiq deceased, Majid accused armed with spear caused injuries on the person of Faqir Muhammad deceased, Mukhtar accused armed with spear caused injury to Muhammad Nazir deceased, Noor Muhammad accused armed with hatchet caused injuries to Muhammad Rafiq deceased, Abdul Sattar accused armed with hatchet caused injuries to Nazir deceased at his abdomen, Muhammad Yousaf accused armed with sota caused sota blow to Faqir Muhammad deceased, Akram accused armed with sota caused a blow on Nazir deceased, Khushi Muhammad accused armed with hatchet caused injuries to Muhammad Nazir deceased, Masqood accused armed with hatchet caused injuries to Faqir Muhammad deceased, Muhammad Rafiq accused armed with hatchet caused injuries to Faqir Muhammad deceased. Muhammad Khalil accused armed with sota caused injury to Muhammad Rafiq deceased, Muhammad Siddiq accused armed with sota caused injuries to Faqir Muhammad deceased, Muhammad Yaqub accused armed with hatchet did not hit anybody. P.Ws. Mst.Rehmat Bibi, Mst. Shabnam and Mst. Hanifan also received injuries at the hands of the accused party. It is further alleged that Nazir, Rafiq and Faqir Muhammad, all the three brothers of the complainant, died on the spot as a result of injuries caused by the accused party. It is also stated in the complaint that during the occurrence the complainant went to dera of Faqir Muhammad deceased, brought his licenced gun from the dera and handed over to Nazir deceased who fired in the air which hit Muhammad Yaqub son of Inayat who also died. Complainant and P.Ws. Also received injuries during occurrence Nazir, Yousaf and Akram were injured by Rafiq and Faqir Muhammad (deceased).
5. The motive behind occurrence was that about one month earlier there was an altercation between the accused and the complainant party over the removal of silt from the watercourse.
Again on the fateful day in the morning deceased Rafiq and Faqir Muhammad son of Fateh Muhammad had insulted Nazir accused. To take revenge of that quarrel the accused party armed with deadly weapons attacked the deceased Nazir, Rafiq and Faqir Muhammad to cause their death.
6. After registration of the case, the Investigation Officer C.W.2, Muhammad Azam. S.I. Arrived at the place of occurrence, prepared the inquest reports Exh.P.B. 3 and Exh.P.C. 3 and Exh.P.D. 3, injury statements Exh.P.B. 1, Exh.P.C. 2 'and Exh.P.D. 2, took the bloodstained earth vide memos. Exh.P.K., Exh.P.L and Exh.P.M, and got the dead bodies into possession and despatched the same for post- mortem examination.
7. Dr. Muhammad Akbar, Medical Officer P.W.1 conducted the postmortem examination on the dead body of Faqir Muhammad on 1-6-1994 and found the following injuries:---
(1) An incised wound 8 x 3 c.m. On the right side of face, 3 c.m. Below right eye upto lips under lying muscle and bone including the tongue were cut.
(2) An incised wound 4 x 2 c.m. On the left side of the face joint below the left lower lip. Under lying muscle and bone were cut.
(3) An incised wound 4 x 1 c.m. On chin with cuts of under lying muscle and bone.
(4) A contused wound 4 x 3 c.m. On the left side of forehead involving the inner half of left eye brow.
Bone was exposed and fractured.
(5) A contused wound 2 x 1 c.m. On the centre of forehead 5 c.m. Above the route of nose. Under lying bone was exposed.
(6) An incised wound 3 x 1 c.m. On the upper half of left ear, cutting it through and through.
(7) An incised wound 6 x 3 c.m. On the left side of scalp behind the left ear. The bone was exposed.
(8) An incised wound 5 x 1 c.m. On left side of the scalp, 5 c.m. Above and behind the route of left ear. The bone was exposed.
(9) An incised wound 4 x 1 c.m. On the left side scalp 2.5 c.m. Above and behind injury No,8 with exposed bone.
(10) An incised wound on the back side of left scalp, 4 x 1 c.m. About 14 c.m. Above and behind the route of left ear.
(11) An incised wound 7 x 2 c.m. On the right side of scalp 12 c.m. Above the route of right ear with exposed bone.
(12) A contusion 5 x 3 c.m. On front of right shoulder joint.
(13) An incised wound 10 x 5 c.m. On the back central and right side of abdomen, 10 c.m. Above the hip, bone and under lying muscles were cut.
(14) An incised wound 3 x 1 c.m. On the back side of right chest, 15 c.m. Below the right shoulder joint with under lying muscle cut.
(15) An incised wound 3 x 1-1/2 c.m. On back of left side of chest, 20 c.m. Below the route of neck and 3 c.m. To left side of mid line with underlying muscles cut.
(16) Incised wound 3 x 1 c.m. On the back of left chest 5 c.m. To the left of injury No,15. The rib and muscles were cut through and through.
(17) Incised wound 2 x 5 c.m. On the back of left side of chest, 12 c.m. Above injury No,16 with under lying muscles cut.
(18) Multiple contusion in an area of 20 x 15 c.m. On the back side of left side of abdomen.
(19) Multiple abrasions 10 x 5 c.m. On the back of right side of chest.
(20) A contusion 12 x 3 c.m. On the back of right upper buttock. On the same day the same doctor conducted the post-mortem on the dead body of Nazir Ahmad deceased and found the following injuries:--
(1) An incised wound 4 x 1 c.m. On the back of right side of scalp, 12 c.m. Behind root of right ear with exposed bone.
(2) An incised wound 2 x 1 c.m. On back of right side of scalp, 3 c.m. Below injury No,1 with exposed bone.
(3) An incised wound 6 x 1 c.m. On back of right side of scalp, 4 c.m. Above and in front of injury No,1 with exposed bone.
(4) An incised wound 5 x 2 c.m. On left side of scalp, 3 c.m. To the left of injury No,3 with exposed bone.
(5) An incised wound 5 x 2 c.m. On right side of scalp, 10 c.m. Above the route of right ear, bone exposed,
(6) An incised wound 5 x 1 c.m. On right side of scalp, 5 c.m. Above injury No,5 with exposed bone.
(7) An incised wound 8 x 1 c.m. On right side of left side of scalp, running obliquely, 3 c.m. In front of injury No,6 with exposed bone.
(8) An incised wound 5 x 1 c.m. On the left side of the scalp, 7 c.m. Above the left eye brow with exposed bone.
(9) An incised wound 4 x 2 c.m. Just above left eye-brow with exposed bone and it was also cut..
(10) An incised wound 4 x 2 c.m. On the right eye-brow with exposed bone.
(11) An incised wound 12 x 4 c.m. On left side of face, it started from outer angle of left eye to chin, cutting under lying muscles and bones.
(12) An incised wound 8 x 4 c.m. Below chin, muscle and bone were cut.
(13) An incised wound 4 x 1 c.m. In the centre of front of left ear with exposed bone.
(14) An incised wound 10 x 2 c.m. In the centre of front of upper abdomen with cut of underlying muscles.
(15) An incised wound 3 x 1 c.m. On outer side of left abdomen, 20 c.m. Above hip joint.
(16) Mutliple contusion in an area of 20 x 20 c.m. 2 c.m. Below injury No,14.
(17) A contusion 20 x 2 c.m. On front of outer side of left thigh, 20 c.m. Below hip joint.
(18) Mutiple contusions in an area of 10 x 10 c.m. On outer side of thigh being 5 c.m. Below injury No,17.
(19) An incised wound 2 x 1 c.m. On outer side of right arm, 15 c.m. Below shoulder joint, corresponding cut in the shirt.
(20) A contusion 5 x 3 c.m. Associated with swelling on the right arm in its full.
(21) Multiple contusions in an area of 10 x 12 c.m. On the back of left shoulder joint.
' The same doctor on the same day conducted post-mortem examination on the dead body of Muhammad Rafiq and found the following injuries:---
(1) An incised wound 3 x 1 c.m. On right side of scalp, 3 c.m. Behind the right ear.
(2) An incised wound 5 x 1 c.m. On right side of scalp, 6 c.m. Above the right ear.
(3) An incised wound 5 x 1 c.m. On right side of scalp, 3 c.m. Above injury No,2.
(4) An incised wound 3 x 1 c.m. On left side of scalp, 11 c.m. Above the left eye-brow with exposed bone.
(5) An incised wound 5 x 1 c.m. On left side of scalp, 6 c.m. Above the left eye-brow with exposed bone.
(6) An incised wound 5 x 1 c.m. On left side of forehead, 4 c.m. Above the route of nose. The bone was exposed.
(7) An incised wound 5 x 1 c.m. On front of scalp, 8 c.m. Above the route of nose with exposed bone.
(8) An incised wound 2 x 2 c.m. On inner side of right eye-brow. The bone was exposed.
(9) An incised wound 5 x 1 c.m. On right side of scalp, 3 c.m. Above injury No,8 with exposed bone.
(10) An incised wound 8 x 1 c.m. On lower part of right side of the face. It was 7 c.m. Below and in front of right ear.
(11) An incised wound 8 x 3 c.m. On right side of neck, 7 c.m. Below the lobule of right ear.
(12) An incised wound 3 x 1 c.m. On front of neck, 8 c.m. Below the chin, the tracheae was cut.
(13) An incised wound on the front of left side of chest 13 c.m. Below left nipple.
(14) Multiple abrasions in an area of 11 x 7 c.m. On the top of left shoulder.
(15) A bruise 7 x 3 c.m. On outer side of left thigh.
(16) An incised wound 3 x 1 c.m. On the back of left buttock.
' On the same day Dr. Abdur Razzq Ghauri, medically examined Mst. Shabnam and found the following injuries on her person:---
(1) An incised wound 3 x 1 c.m. On right side of skull, 5 c.m. Above the root of right ear. Bone was exposed.
(2) Swelling on left cheek in area 10 x 7 c.m.
(3) Lacerated wound 1/4 x 1/4 c. m. On upper front side upper front left incisor tooth was missed, corresponding injury present on lower lip.
(4) Swelling on left fore-arm including elbow joint 17 x 9 c.m. Area.
(5) Multiple bruises on back of chest side 13 x 14 c.m. Below nape.
(6) Multiple bruises on back of chest both sides, 15 x 19 c.m. Area, 7 c.m. Below injury No,5.
(7) Bruise on front of knee joint 8 x 4 c.m. All the injuries were kept under observation for X-Rays and clinical assessm ent.
' On the same day the same doctor medically examined Mst. Rehmat Bibi and found the following injuries on her person:---
(1) An incised wound on right side back of skull 10 x 2 c.m. 12 c.m. Behind the root of right ear, bone was exposed.
(2) An incised wound on the back of skull left side 8 x 2 c.m. 13 c.m. Behind the root of left ear. Bone was exposed.
(3) Swelling on right fore-arm 9 x 8 c.m. Area, just below the elbow joint.
(4) Swelling on right hand 16 x 14 c.m. Area.
(5) Swelling on left fore-arm including hand in area 35 x 26 c.m.
(6) Multiple bruises on back of chest on both sides in area 31 x 31 c.m. The same doctor on the same day medically examined Mst. Hanifan Bibi and found the following injuries on her person---
(1) A swelling on left fore-arm 13 x. 12 c.m., area, just below elbow joint.
(2) Swelling on right hand 12 x 12 c.m. Area,
(3) Swelling on left leg, including ankle joint 20 x 12 c.m. Area.
(14) Bruise on back of chest both sides in oblique fashion 18 x 7 c.m. About 20 c.m. Below nape.
8. During the investigation the Investigating Officer found Noor Muhammad, Abdul Sattar, Khushi Muhammad, Maqsood, Muhammad Rafiq, Muhammad Siddiq and Inayat innocent. The appellants were found guilty of the offence and were challaned to face the trial. Since all the appellants were also included in the private complaint in addition to the accused who were declared innocent, therefore, the trial on the complaint was conducted.
9. A cross case (F.I.R. No,186 of 1994) under section 302/324/109/34, P.P.C. Was also registered on 31- 5-1994 at the instance of Muhammad Ismail for the murder of Muhammad Yaqub son of Inayat and causing murderous assault on Abdul Majid, Muhammad Yousaf, Khalil Ahmad, Nazir Ahmad, Inayat and Akram P.Ws. Being dissatisfied with the investigation a private complaint was filed by Muhammad Ismail against Mst. Hanifan widow of Jalal Din, Rehmat Bibi daughter of Jalal Din, Shabnam daughter of Faqir Muhammad, Ghulam Haider son of Fateh Muhammad (brother of Mst.
Hanifan), Muhammad Rafiq son of Fateh Muhammad, Aqeel son of Rukan Din, alleging therein that on 31-5-1994 at about 5-30 p.m. In the area of Chak No,67/TDA, Tehsil Bahakkar the accused persons alongwith the deceased Nazir, Faqir Muhammad and Muhammad Rafiq armed with deadly weapons formed an unlawful assembly committed murder of Muhammad Yaqub and caused injuries on Abdul Majid, Muhammad Yousaf, Inyat and Akram P.Ws. Khalil Ahmad Nazir Ahmad, while Muhammad Rafiq and Aqeel accused is that they abetted the commission of present offence.
10. The same Investigating Officer after completing the fornialities and making recoveries from the spot despatched the dead body of Muhammad Yaqub for post-mortem examination.
11. Dr. Khalid Javid P.W. Conducted the post-mortem examination on the dead body of Muhammad Yaqub and found the following injuries on his person:--
(1) There were five fire-arm wounds of enterance each size of 1 x 1 c.m. In the area of 11 x 9 c.m. On front of left chest starting just at the level of left nipple going downward (blackening and burning of skin was present). Those fire-arm wounds of enterance were 5 c.m. Apart from each other.
(2) Five fire-arm wounds of entrance in the left exilla in an area of 9 x 4 c.m. (blackning and burning of skin was present). Each of the size was 1 x 1 c.m. In-between the distance of 4 c.m. From each other.
' On the same day Dr. Abdur Razaq Ghouri, medically examined Muhammad Yousaf and found the following injuries on his person:
(1) An incised wound 11 x 3 c.m. On front of chest right side 10 c.m. Below route of neck.
(2) Incised wound on right corner of lower lip 1-1/2 x 1-1/2 c.m. The same doctor on the same day medically examined Inyat and found the following ihjuries on his person:---
(1) An incised wound on top of skull 8 x 1 c.m. Front side 8 c.m. About the left eye-brow, bone was exposed.
(2) An incised wound on right side of abdomen 8 x 4 c.m. Underlying intestines were protruded out the wound.
(3) An incised wound 5 x 2 c.m. On left side of abdomen just above the left iliac crest, intestine were protruded out the wound.
' On the same day the same doctor also examined medically Abdul Majid and found the following injuries on his person:--
(1) An incised wound on back of right chest 4 x 2 c.m. 7 c.m. Below right shoulder tip, probing not done, corresponding cut was present on Qameez, injury was kept under observation for X-Ray and clinical assessm ent, injury was caused by sharp-edged weapon within three hours. The patient was referred to Nishtar Hospital, Multan.
' On the same day this doctor has also medically examined Muhammad Akram and found the following injuries on his person:--
(1) An incised wound on top of skull 6 x 2 c.m. -17 c.m. Above the route of right ear. Bone was exposed.
(2) An incised wound 9 x 2 c.m. On the skull just behind No,1, bone was exposed.
(3) An incised wound 1 x 1-1/2 c.m. On outer side of right elbow joint, muscle deep. On the same day the same doctor also medically examined Khalil Ahmad and found the following injuries on his.Person:--
(1) Lacerated wound 1 x 1/2 c.m. On outer side of right eye-brow, muscle deep.
(2) Bruise on back of right shoulder 9 x 2 c.m. 8 c.m. Below the nape, with swelling around the wound.
' After completion of the investigation, the accused Ghulam Haider, Muhammad Rafiq and Aqeel were sent to face trial. Since all the accused were also included in the private complaint in addition to the accused who were declared innocent, therefore, the trial on the complaint was conducted.
12 During the trial, prosecution produced 10 witnesses while three Court witness were examined.
P.W.1 Muhammad Ismail Patwari prepared the site plan of the place of occurrence on the pointation of the P.Ws. And direction of the police which is Exh. PA. P.W.8 is Rehmat Bibi who supported the version of the complaint and narrated the detail of injuries caused by the accused on her three deceased brothers namely Nazir, Faqir Muhammad and Muhammad Rafiq and also in the witness Mst. Hanifan, Mst. Shabnam and herself. P.W.9 Ghulam Haider also supported the statement of Mst. Rehmat Bibi. C.W.1 Sultan stated that on 31-5-1994 he attested the recovery memos. Of blood-stained earth prepared by the Investigating Officer and also attested the recoveries of weapons of offence which were got recovered by the appellants. C.W.2 Muhammad Azam is the Investigating Officer, who recorded the F.I.R. Exh. PJ on 31-5-1994 on the statement of Ghulam Haider, inspected the spot secured the blood-stained earth prepared the inquest report and injuries statements of three deceased also the injuries statements of three injured ladies namely Mst. Hanifan, Rehmat Bibi and Shabnam and got them medically examined. C.W.3 is Bahadar Shah. A.S.-I. In whose presence accused Khalil got recovered danda Exh. C.W.2/3.
13. The accused persons were examined under section 342, Cr.P.C. All of them denied the prosecution story and took the plea of private self-defence.
14. Nazir Ahmad accused stated in his statement that in fact on 31-5-1994 at about 5.30 p.m. He, Muhammad Yousaf, Khalil, Inayat, Majid and Muhammad Yaqub (deceased) were working in their land when all of a sudden Nazir deceased armed with gun, Muhammad Rafiq armed with spear and Faqir Muhammad deceased armed with hatchet, Mst. Hanifan and Shabnam armed with sotas, Rehmat Bibi armed with hatchet while Ghulam Haider empty handed emerged there and attacked them with their respective weapons. Nazir deceased fired with his gun hitting Muhammad Yaqub and caused his death while the other companions caused injuries to the accused persons.
He further stated that after the death of Muhammad Yaqub, inhabitants of the village reached there and inflicted injuries on the person of Nazir, Muhammad Rafiq and Faqir Muhammad assailants.
15. In the cross-version the prosecution complainant Muhammad Ismail examined 13 witnesses.
Bashir who appeared as C.W.1 who attested the recovery memo. Of blood-stained earth and clothes of the deceased Muhammad Yaqub. C.W.2 Muhammad Azam partly investigated the case F.I.R. No, 186 of 1994 and submitted the challan against Ghulam Haider, Muhammad Rafiq son of Fateh Muhammad and Aqeel accused. P.W. 8 Muhammad Ismail is the complainant of the F.I.R.
Who also supported his version in the complaint while P.W.10 Nazir Ahmad, P.W.11 Muhammad Yousaf and P.W.12 Abdul Majid are the eye-witnesses supported the version of Muhammad Ismail.
16. The accused were examined under section 342, Cr.P.C. All of them denied the prosecution allegation and claimed the occurrence as stated by Mst. Rehmat Bibi in her complaint. Mst. Rehmat Bibi accused produced the doctor who conducted the post-mortem examination on the dead bodies of her three brothers namely, Nazir, Muhammad Rafiq and Faqir Muhammad and has also medically examined Mst. Hanifan, Mst. Shabnam and....
17. Learned counsel for the appellants has argued that the complainant party was the aggressor and it is in prosecution evidence that the appellants were present in their land while the complainant party and Nazir deceased hit Muhammad Yaqub with gun who died as a result of two fire-arm injuries. The blackening on injury shows that Muhammad Yaqub deceased was hit from a close range and after death of Muhammad Yaqub, the appellants and other inhabitnants of the village retaliated and caused injuries on the complainant party due to which Nazir, Muhammad Rafiq and Faqir Muhammad died and also the ladies were injured. It has been further argued that the detail of injuries allegedly caused by the appellants and their co-accused given to Rehmat Bibi has been disbelieved during the investigation. The plea of alibi of acquitted co-accused was believed during the investigation, therefore, the story narrated by the said Rehmat Bibi supported by Ghulam Haider alleged eye-witnesses is not true. It is further argued by the learned counsel for the appellants that it is a case of free fight and even the appellants are responsible for the role played during the occurrence individually for the murder of three deceased brothers. Learned counsel has also argued that Muhammad Ismail accused is attributed only lalkara and no overt act has been assigned to him. It is also argued on behalf of Muhammad Yaqub son of Muhammad Saddique appellant that said Yaqub has not caused any specific injury to the deceased or any injured witness. Learned counsel appearing for Muhammad Akram son of Khushi Muhammad has argued that Muhammad Akram was alleged to be armed with sota and no grievous injury is attributed to him on any of the deceased or the witnesses. It is also argued that some witnesses had been disbelieved while acquitting the co-accused so their testimony cannot be relied upon qua the appellants.
18. In the cross-version learned counsel for the appellant Ghulam Haider has argued that no active role has been attributed to the appellant and he has been convicted only because he remained present at the spot with empty handed and had instigated the deceased persons and the ladies to commit the present offence by raising lalkara. It is further argued that appellant alongwith his brothers have been involved in the present case because he was an eye-witness in the main case and he supported the ladies who were left alive to pursue the case.
18. Learned counsel for the State in both the appeals have supported the impugned judgments.
19. Heard. Record perused.
20. I have considered the arguments of the learned counsel for the appellants. There is no much dispute about the occurrence, place of occurrence and the motive. Appellant Nazir Ahmad has not admitted the incident which took place in the morning of the fateful day i.e. 31-5-1994 in which he received injuries at hands of Muhammad Rafiq (deceased) and Muhammad Rafiq son of Fateh Muhammad deceased which was the immediate cause of the occurrence. As per opinion of doctor who medically examined Nazir Ahmad accused at 9.25 p.m. On 31-5-1994, it is stated that duration of the injuries on the person of Nazir accused are within 12 hours meaning thereby that Nazir Ahmad accused had also received certain injuries prior to the present occurrence. To take the revenge of earlier altercation between the parties over the removal of silt from the watercourse followed by scuffle between the deceased Rafiq and Muhammad Rafiq son of Fateh Muhammad with Nazir Ahmad appellant causing him injuries was the bone of contention and the appellants attacked the complainant party armed with hatches and spears. According to the evidence of P.W.1 Muhammad Ismail Patwari the place of occurrence is the land belonging to one Bashir Ahmad which is nearer to the land of Inayat from one side and also not far from the Dera of Faqir Muhammad deceased to which Nazir and Muhammad Rafiq deceased were coming at the particular time. The fire-arm injury on the person of Yaqub son of Inayat having been caused by Nazir Ahmad deceased, during the occurrence has also been admitted by both the parties: The complainant Mst. Rehmat Bibi who was examined as P.W.8 has narrated the details of injuries received by the complainant party at the hands of the appellants and their co-accused since acquitted. Rehmat Bibi injured P.W. Who is also the complainant, while her daughter Mst. Shabnam and Mst. Hanifan were also injured. Their presence at the spot cannot be doubted. The accused party has also admitted the presence of these witnesses. They have fully supported the prosecution story and have attributed specific role to Nazir Ahma, Abdul Majid, Muhammad Younas and Muhammad Yousaf for causing injuries to deceased Nazir Ahmad, Faqir Muhammad and Muhammad Rafiq with hatchets and spears and caused their death. All the appellants have also led to the recovery of respective weapons of offence. The ocular account has been fully supported by medical evidence. The complainant party received as many as 74 injuries in all on three deceased persons and on the persons of prosecution witnesses while the accused party received 34 injuries in all. I am not convinced that the complainant party was the aggressor. The appellants are rightly held responsible for the murder of three brothers namely Nazir, Faqir Muhammad and Muhammad Rafiq. Their appeal has no force.
21. The case of Muhammad Ismail and Muhammad Yaqub is distinguishable from the others.
Muhammad Ismail is alleged to be empty handed at the spot and no active participation in the occurrence has been attributed to him expcet lalkara which is not considered sufficient for recording/sustaining of his conviction as the motive was to Nazir Ahmad accused and others who came armed at the spot and not Ismail while Muhammad Yaquab son of Muhammad Siddique was although alleged to be present at the spot armed with hatchet but he has not inflicted any blow on the persons of the deceased, therefore, mere presence at the spot is not sufficient to consider him guilty for commission of murder. Their appeal succeeds.
22. In the case of Muhammad Akram and Muhammad Khalil appellants, they are stated to be armed with Dandas and they have not caused grievous injury on the persons of the prosecution witnesses. They might have arrived at the venue of occurrence after hearing about the quarrel without any premeditation and have not any common intention with their co-accused for the murder of the deceased, hence their conviction under section 302/148/149, P.P.C. Is not sustainable.
They are, therefore, acquitted of the said charges by giving them the benefit of doubt. However, their presence, participation and causing simple injuries to the P.Ws. Is admitted, so their conviction under section 324, P.P.C. Is maintained but their sentence is reduced to 5 years each which I feel is sufficient to meet the ends of justice.
23. In the cross-version Ghulam Haider is not attributed causing any injury to deceased Muhammad Yaqub or to any of the witness. Admittedly he remained empty handed during the occurrence and possibility of his false implication, being an eye-witness of the occurrence, cannot be overruled. His appeal also succeeds. He is acquitted of the charge by giving the benefit of doubt. He shall be released forthwith from the jail if not required to be detained in any other case.
24. Resultantly, the appeal of Nazir Ahmad, Abdul Majid sons of Ibrahim, Muhammad Younas son of Muhammad Siddiq and Muhammad Yousaf son of Inyat is dismissed.
25. The appeal of Muhammad Isma il son of Qadir Bakhsh and Muhammad Yaqub son of Muhammad Siddiq is allowed. The impugned judgment to their extent is set aside. They are acquitted from the charge and shall be released forthwith if not required in any other case.
26. Benefit of section 382-B, Cr.P.C. Already granted to the appellants shall be available to the appellants.
27. The revision petition having no force is dismissed.