' FALAK SHER, J.--- Azmat (73) was tried alongwith his brother-in-law (Bahnoi) Lal son of Sultan (70); the latter's three sons Noor Ahmed (35), Zahoor Ahmed (31), Haji Ahmad (25); Muhammad Anwar (30), Ghulam Farid (60), the latter's maternal nephew Ghulam Abbas (22) (appellants in Criminal Appeal No,324 of 1992); Khshhal (33), his brother Mopal (30) and Lal (40) sons of Bahadur (appellants in Criminal Appeal No,327 of 1992) in the case registered vide F.I.R. No,520 of 10th September, 1991, Police Station Mochiwala, District Jhang reporting double murder and murderous assault on four P.Ws. By a learned Additional Sessions Judge, Jhang, resulting into conviction and sentence of Azamt, Noor Ahmad and Muhammad Anwar under section 302/149, P.P.C. On-two counts viz. Former two for the murder of Allah Ditta (45) son of Bahadur and latter for the murder of Mst. Sattan (50) to death and in the respective converse order to imprisonment for life with a compensation of Rs,10,000 on each count payable to the respective legal heirs of the deceased or to suffer S.I. For six months; (ii) all the remaining appellants under section 302/149 to imprisonment for life with the alike amount of compensation payable to the legal heirs of the deceased on two counts; (iii) concurrently all the appellant:-- (1) under section 148 to 2 years R.D. With a fine of Rs,2000 or in default to suffer 3 months S.I. (2) under sections 337-A(ii)/149, 337-L(ii)/149, 337- F(ii)/149 to pay Allah Ditta P.W.12 son of Sheen Rs,8,800 as Arsh and Rs,500 as Duman on each count; (3) under sections 337-A(i)/149 and 337-L(ii)/149 to pay Jehangir P.W.13 Rs,500 as Daman on each count, (4) section 337-F (iv)/149 and 337-L(ii)/149 to pay Ahmad P.W.14 Rs,500 as Daman on each count; (5) under sections 337-A(i)/149 and 337-L(ii)/149 to pay Rajab (given up) Rs,500 as Daman on each count. Pending realization of Arsh and Daman to serve simple, imprisonment availing the benefit of section 382-B, Cr.P.C. Vide the judgment, dated 15-3-1992.
2. Out of which Murder Reference No,178 of 1992 has emerged tending to seek confirmation of the awarded death sentence as well as Criminal Appeals Nos.324 and 327 of the same year assailing legality of the appellants' conviction and sentences which are disposed of together herein below.
3. Haq Nawaz'P.W.11 resident of Chak No,453-JB situated 10 miles away from Police Station Mochiwala District Jhang on 10-9-1991 at 6-30 a.m. Got F.I.R. Exh.P.T registered with Muhammad Nazir, Inspector S.H.O. P.W.15 at the police station alleging that around 5 a.m. Accompanied by his brother-in-law (wife's brother) Allah Ditta deceased and Ahmad P.W.14 while he was engaged in irrigating their crops in square No,45, Azmat son of Thiraj (Phaura), Noor Ahmad, Zahoor Ahamd, Haji Ahmad sons of Lal (Dangs); Lal son of Sultan (hatchet), (Jalal son of Sultan (Dang) (not challaned), caste Naul, Lal son of Bahadur caste Hasnana (Dang), Riaz son of Farid (Hatchet) (not challaned), Ghulam Abbas son of Islam (Sota), Anwar son of Alawal caste Naul (Dang), Khushhal and Mopal son of Bahadur caste Hasnana co-villagers suddenly emerged at the scene and resorting to exhortation launched the assault.
' Responding to Azmat's exhortation to catch hold of them and teach a lesson for not letting them irrigate. Haji Ahmad inflicted Dang blows on Allah Ditta deceased's left eye to whom Lal supplemented on the right shoulder, Noor Ahmad on the head and so did Azmat as a result whereof he collapsed on the ground.
' Attracted by the complainant's and Ahmad P.W.14's hue and cry Rajjab (given up), Allah Ditta P.W.12, Jahangir P.W.13 and Mst. Sattan deceased, co-villagers, came over and endeavoured to rescue Allah Ditta deceased at which juncture Zahoor caused hatchet injuries to Ahmed P.W.14, Mopal inflicted stick blows to Jehangir P.W.13; so did Anwar Lal and Khushhal to Mst: Sattan deceased with sticks and Dangs; Zahoor, Muhammad Anwar, Riaz, Ghulam Abbas to Rajjab Ali (given up) with stick and hatchets; Raiz, Azmat, Lal and Jalal to Allah Ditta P.W.12 who, too, fell on the ground.
' At this juncture Aslam son of Shahamand, Talib Hussain son of Ismail also showed up and viewing the occurrence rescued them from the assailants by which time Allah Ditta deceased had succumbed to the injuries.
' Regarding motive it was alleged that Muhammad Anwar etc., were entangled with Haji Ahmed etc., in a civil litigation pending adjudication and were embittered over the latter's resistance to their irrigation of lands.
4. Muhammad Nazir, Inspector S.H.O. P.W.15 proceedings to the spot prepared injury statements and inquest reports of Allah Ditta (at the spot) and Mst. Sattan (in the hospital) Exh.P.G.3, P.G.4; PA, PF.3 respectively despatched the dead bodies to the mortuary with Muhammad Anwar F.C. P.W.5 and Muhammad Iqbal P.W.6 who tendered their respective last worn blood-stained clothes vest P.1, Chadar P.2 Parna P.3; Dhoti P.4, Shirt P.5 and Dopatta P.6, secured into possession vide memo, Exhs.P.H. And P.I. Respectively; prepared injury statements of the injured P.Ws. Rajab Ali (given up)
PB, Allah Ditta P.W.12 P.C., Ahmed P.W.14 PD Jehangir P.W.13 PE; collected blood-stained earth from Allah Ditta deceased's place vide memo Exh.P.K.; got prepared site-plan Exh.P.S. From Imam Bakhsh Patwari P.W.10.
' On 27-9-1991 arrested all the appellants amongst whom on 5-10-1991 Noor Ahmad led to the recovery of Dang P.14, Lal son of Sultan (hatchet) P.15, Haji Ahmad Dang P.16 and Lal son of Bahadur
(Dang) P.17 from their respective houses, all unstained secured into possession vide memos.
Exhs.P.U., P.V., P.W. And P.X. Respectively, attested by the complainant P.W.11, Ghulam Muhammad given up and the Investigating Officer; likewise on 6-10-1991, Ghulam Abbas led to the recovery of Dang P.7, Azmat Phaura p.8, Zahoor Ahmed Dang P.9, Mopal Sota P.10, Khushhal Sota P.11, Ghulam Farid hatchet P.12 and Muhamamd Anwar Dang P.13 all unstained from their respective houses secured into possession vide memos. Exhs.P.L., P.M., P.N., P.O., P.P., P.Q. And P.R., all attested by Mohni Khan P.W.9, Muhammad Aslam given up the Investigating Officer.
' Responding to query stated that first version of Azmat was that Farid was irrigating his land and after offering Fajar prayers attracted by the hue and cry he went to the spot and requested the parties not to quarrel over turn of water during the course whereof he suffered a stick blow at the hands of Allah Ditta P.W., which version Noor Ahmad, Farid and Anwar also adopted while Ghulam Abbas, Khushhal, Mopal, Lal son of Bahadur Lal son of Sultan pleaded not to be around; neither he recorded statement of the canal Patwari qua the Warabandi nor obtained attested copy thereof.
5. Dr. Allah Bakhsh Chaudhry P.W.1, Medical Officer Rural Health Complex Mochiwala on 10-9-1991 from 12-30 p.m. Onward conducted medical examination of Mst. Sattan deceased then in injured condition, Rajab Ali (given up), Allah Ditta P.W.12, Ahmed P.W.14 and Jehangir P.W.13 observing the following vide medico-legal reports Exhs.P.A./1, P.B./1,P.C./1, P.D./1 and P.E./1 respectively:--
(i) Mst. Sattan Deceased:-- "(1) A swelling of 15 c.m. x 10 c.m. On middle of right side of head 6 c.m. From right ear.
(2) Missing of first inciser teeth of upper jaw of right side with injury to gum and lip corresponding to the respective teeth.
(ii) Rajab Ali "(1) A lacerated wound 7 c.m. x 1 c.m. Bone deep on front of left side of head 12 c.m. From left ear.
(2) Lacerated wound 3 c.m. x 2 c.m. Bone deep 2 c.m. Front of injury No,l.
(3) Lacerated wound 2 c.m. x 1 c.m. With blood (clotted) present in the wound which was bone deep on left side of head 7 c.m. From left ear in back and oblique direction.
(4) A swelling 12 c.m. x 8 c.m. On front and outer side of left fore-arm middle part."
(iii) Allah Ditta "(1) Lacerated wound 5 c.m. x 1 cm.. Anterior half of head in their mid line. The wound had completely ruptured the scalp and bone was exposed.
(2) Lacerated wound 2 c.m. 1 c.m. With complete rupture of skin on back of right side of head 9 c.m.
From right ear.
(3) Contusion mark 10 c.m. x 3 c.m. On back of left fore-arch middle part.
(4) Incised wound 2 c.m. 1/2 c.m. On middle of index finger of right hand. The wound was bone deep."
(iv) Ahmed "(i) An incised wound 2 c.m. x 1/2 c.m. On back of left elbow joint. There was complete incision of flesh and bone was exposed.
(2) A swelling 3 c.m. x 4 c.m. On the back of left chest middle part.
(3) Complaint of pain in lower abdomen with difficulty in urination."
(v) Jahangir "(1) A lacerated wound 2 c.m. x 1/2 c.m. On front of left side of upper lip external surface.
(2) A lacerated wound 1/2 c.m. x 1 c.m. On the inside of upper lip left side in line with injury No,1 .
(3) A contusion mark 6 c.m. x 2 c.m. On the outer surface of right forearm middle part.
(4) Contusion marks 4 c.m. x 1 c.m. On middle of right fore-arm 2 c.m. Below injury No,3."
6. Dr. Faqir Zaigham P.W.2, Medical Officer District Headquarters Hospital Jahng on 11-9-1991 at 11-50 a.m. Conducted autopsy on Mst. Sattan deceased's body observing the injuries noted in the medico-legal report Exh.P.A./1 vide post-mortem report Exh.P.F.
7. Dr. Fayaz Hussain P.W.3, Medical Officer District Headquarter Hospital Jhang on 10-9-1991 at 4-10 p.m. Performed autopsy on Allah Ditta deceased's body observing the following vide post-mortem report Exh.P.G:-- "(1) A lacerated wound of size 4 c.m. x 1 c.m. Scalp deep on top of head.
(2) Contusion mark of size 6 c.m. x 4 c.m. On both eyelids of left eye.
(3)Signs of bleeding were present in both nostrils.
(4) Contusion mark of size 6 c.m. x 2 c.m. On top of right shoulder."
8. Haq Nawaz complainant P.W.11 testifying the prosecution story explained that neither he nor Ahmad P.W.14, nor Allah Ditta deceased owned land in square. No,45, according to the Warabandi Panel in operation for the last 5/6 years. Ahmad P.W. Had no sanctioned water from the outlet in question though the appellants had been pleading ignorance as to commencement of their turn from 4-57 a.m. To 6-30 p.m.; they had started irrigation from 2-30 a.m. Refusing the suggestion as to launching of assault by the deceased alongwith the injured P.Ws. On Ghulam Farid, Muhammad Anwar, Noor Amad and Azmat whereupon altercation ensued and they acted in self-defence.
9. Allah Ditta P.W.12 having place of abode 2 squares away from the spot to the same effect in cross-examination affirming to have not stated in his statement to the police Exh.DB as to infliction of stick blow by Khushhal on Mst. Sattan deceased's face admitted to have caused stick blows to Azmat on the arm snatching it from Anwar.
10. Similar was the testimony of Ahmal P.W.14 save for marginal negligible contradictions.
11. Azmat appellant recording his statement contemplated by section 342, Cr.P.C. Preferring not to depose on oath in terms of section of 340(2) ibid gave his version of the incident in his follow terms:--- "The P.Ws. Have deposed falsely. I and my co-accused and the complainant party irrigate our land from Mogha No,5500-L vide penal Warabandi, dated 27-3-1990. At the time of occurrence there was Wari of water of Farid accused, while he was watering his field, Allah Ditta deceased and the injured P.Ws. Attacked upon him while at that time they had no turn of their water. They caused injuries to Farid, Anwar, myself and Noor Ahmad co-accused and that I had gone there to save the situation. I am of the age of 70 years and unable to quarrel with anybody. The above-mentioned three accused were within their rights to counter attack the complainant party in exercise of their right of person and property. Mst. Sattan deceased also had been trying to intervene and save the situation and I do not know as to how she received injuries as it was darkness." ' which the remaining appellants also adopted.
12. Legality whereof has been assailed by the learned counsel for the appellants contending that the complainant's side was the aggressor over controvery as to turn of water wherein the appellants acted in self-defence of person and property amongst whom four, namely Azmat, Anwar, Noor Amad and Ghulam Farid have suffered injuries which have been deliberately suppressed by the prosecution and the incident had precipitated suddenly without premeditation; that medical evidence contradicts the ocular accounts vis., singular head injury of Allah Ditta deceased has been attributed to Azmat and Noor Ahmad while the two injuries noted on Mst.
Sattan's person have been ascribed to three appellants i,e, Anwar, Lal and Khushhal; testimony of the eye-witnesses is self-contradictory as to locate and nature of the injuries as well as the weapons used viz., blunt and sharp; the recoveries are of no avail for the mechanical fashion in which the same are alleged to have been recovered in quick succession in the presence of the two sets of witnesses specially being not stained with blood; Ghulam Farid was not named in the F.I.R.
Rather was subsequently introduced through a supplementary statement who inter alia is alleged to have caused injuries to Rajab Ali who has been given up while Khushhal, Mopal and Lal sons of Bahadur have been falsely involved bearing no nexus with the remaining appellants.
13. Having perused the entire evidence with the assistance of the learned counsel for the appellants of the admitted occurrence we are of the opinion that the incident appears to have sparked off on the spur of the moment without premeditation over a traviality as to turn of water rightful claim whereof remained substantiated, and both the sides seemingly asserting their respective claim resorted to physical violence deploying ordinary weapons like stick and tools of husbandry, and during the melee persons from both the sides including their respective party men having intervened with a view to patching up the incident too suffered injuries which are duly borne out by the medical evidence of the injured P.Ws. As well as the appellants referred to supra. And in keeping with the conventional pattern in such like events both the sides not unsurprisingly painted the other side as the ghost exaggerating their role minimizing or suppressing actus rea of their own.
14. Wherein the alleged recoveries are of no avail since, independent of the nature of weapons admittedly those are not stained with blood, further the mechanical fashion those are acclaimed to have been gathered in quick succession on .The two dates through the two sets of witnesses seems to be too much of coincidence.
15. Resultantly, each one of the participants has rendered himself responsible for his own doing without sharing commonality of intent on account of vicarious liability.
16. Therefore, venturing upon to determine the individual responsibility starting with the singular head injury of Allah Ditta deceased (No,1 opined to be fatal having been ascribed to two appellants namely Noor Ahmad and Azmat involved of the latter seems to be doubtful because the weaponry attributed i,e, Phaura being heavier in nature ought to have caused greater impression on the top of the deceased's head which prima facie appears to be irreconcilable with his advanced age, therefore, is acquitted of the charge holding Noor Ahmed responsible for the fatal below as an impact where of No 3. i,e, bleeding through nostrils was also caused which is not an independent injury.
17. Further, Haji Ahmad and Lal son of Bahadur are found guilty of causing injuries Nos.2 and 4, respectively to Allah Ditta deceased, whose conviction and sentences on this count being duly vouched by the ocular account and the medical evidence are unexceptionable.
18. Likewise, Anwar and Lal son of Bahadur are found guilty for the murder of Mst. Sattan each having caused one of the two injuries noted on her person acquitting Khushhal giving him the benefit of doubt on that count, since, Allah Ditta P.W.12 had not ascribed any injury to him in his statement Exh.DB recorded before the police.
19. Consequently, maintaining the convictions of Noor Ahmad, Haji Ahmad and Lal son of Bahadur for the murder of Allah Ditta, and that of Anwar and Lal son of Bahadur for the murder of Sattan, the awarded death sentences of Noor Ahmad and Anwar are not confirmed, instead are altered to imprisonments for life on the respective count being at par with the remaining co-convicts on these counts namely Haji Ahmad and Lal son of Bahadur, enhancing the compensation to Rs,50,000 each on each of the respective counts or in default to suffer 6 months' S.I. For the adjudged amount by the Trial Court being ridiculously meagre (having put their counsel on notice) availing the benefit contemplated by section 382-B, Cr.P.C.
20. All the remaining appellants are acquitted of the capital charge under section 302/149, P.P.C.
21. As a necessary corollary of the aforegoing conviction and sentence of all the appellants recorded under section 148, P.P.C. Is set aside and are acquitted of that charge too.
22. Further, convictions and sentences of Azmat and Lal son of Sultan for causing hurt to Allah Ditta P.W.12 are maintained being duly borne out by the ocular account in particular that of the latter and the medical evidence; acquitting Farid on that Court giving him the benefit of doubt for non- ascription thereof by the injured in his statement recorded with the police being Exh.D.B.
23. Likewise, Mopal's conviction and sentence for causing hurt to Jehangir P.W.13 is maintained and so is that of Zahoor Ahmad qua Ahmad P.W .14 .
24. Whereas Anwar; Zahoor Ahamd, Ghuulam Farid and Ghulam Abbas's conviction and sentence for the alleged causation of injuries to Rajab Ali given up P.W. Is set aside for the latter having not been examined.
25. Accordingly, the captioned appeals are disposed of in the above terms.
26. And answering the murder reference in the negative the death sentences of Azmat, Noor Ahmad and Muhammad Anwar are not confirmed.