' This judgment will dispose of Criminal Revision No,96 of 1998 as well as Criminal Miscellaneous No,665/M of 1998 as both arise out of common judgment, dated 10-3-1998 passed by learned Additional Sessions Judge, Sargodha and judgment, dated 11-1-1995 passed by Mr. Sardar Ahmad Chaudhry, Magistrate Section 30, Sargodha. Zahoor Ahmad, Muhammad Afzal, Manzoor, Muhammad Hussain, Mumtaz, Noor Muhammad, Muhammad Riaz, Allah Ditta, Abdul Majeed and Muhammad Akram have assailed the judgment, dated 10-3-1998 passed by Mr. Muhammad Akram Zaki, learned Additional Sessions Judge, Sargodha and judgment, dated 11-1-1995 passed by Mr. Sardar Ahmad Chaudhry, Magistrate Section 30, whereby, Zahoor Ahmad was convicted under section 411, P.P.C. And sentenced to suffer six months' R.I. All the petitioners were convicted under section 148, P.P.C. And sentenced to undergo six months' R.I. Each. They all were convicted under section 337-A(ii) read with section 149, P.P.C. And sentenced to undergo six months R.I. As Tazir and also to pay cash i,e, 50% of Diyat to Dulla and Shahni (Diyat in the relevant year was Rs,1,75,000). All the petitioners convicted under section 337-A(iv) read with section 149, P.P.C. And sentenced to undergo six months R.I. Each and to pay with i,e, 50% of Diyat to be paid to $he legal heirs of injured Nazir.
' All the petitioners were convicted under section 337-F(i) read with section 149, P.P.C. And sentenced to suffer R.I. For six months each and to pay Daman of Rs,2,000 each to injured Taja, Gulzar, Shahani and Nazir.
' All the petitioners convicted under section 337-F(vi) read with section 149, P.P.C. And sentenced to undergo six months R.I. As Tazir and also to pay Daman of Rs,2,000 each to injured Dulla and heirs of Nazir (who died after lodging of the F.I.R.). All the sentences of imprisonments were ordered to run concurrently.
2. The prosecution case in brief is that on 21-12-1991 at 6-30 p.m. The complainant Taja P.W.2 and his nephew Nazir P.W.4 were returning to their house from Dera of Chananay Wala. When they reached near the colony, Allah Ditta, Mumtaz, Noor Muhammad, Riaz; Manzoor, Zahoor, Afzal, Muhammad Hussain, Abdul Majeed and Muhammad Akram accused/petitioners all armed with Sota were sitting over there. They threw challenge to Taja. His nephew Nazir was armed with gun, he in response fired a shot in air. On hearing report of the gun Dulla came to rescue Taja. The petitioners were alleged to have snatched gun from Nazir who thereafter, fled away. Muhammad Riaz petitioner inflicted Sota blow on the arm of Dulla. Mumtaz gave a Sota blow on the head of Dulla, as a result of which he fell down. Thereafter, all the accused gave him Sota blows on his person. They caught hold of Taja and after giving Sota blows confined him in a Kotha after locking the same from outside. Gulzar son of Taja and Nazir son of Saie (deceased) and Shahani reached the spot. They also were caused injuries by the accused persons. It is further alleged that Mst.
Mehtab Bibi wife of Abdul Rashid, Nawab Bibi wife of Allah Ditta and Mst. Shehnaz Bibi daughter of Allah Ditta also inflicted Sota blows on the persons of Gulzar and others. Nazir injured was also taken into custody by the accused and locked in a room. On hearing the alarm Muhammad Hayat, Muhammad Yar and Muhammad son of Malla all residents of the vicinity were attracted to the spot and they rescued the injured and got released Taja and Nazir from the custody of the accused persons.
3. The motive was alleged to be that Riaz petitioner had illicit relations with Mst. Rasoolan relation of Taja and he had been visiting the Dera of Mst. Rasoolan, on which Taja had a scuffle with him 5/6 days prior to this occurrence. As a result of which the accused petitioners nourished grudge against the complainant party, which resulted in above described incident.
4. The petitioners were formally challenged under sections 382/337-A(vi)/337F(vi)/337-A(ii)/337- F(i) and 149, P.P.C. All the accused persons, however, pleaded not guilty to the said charge.
5. The accused were put on trial, during which 12 witnesses were recorded by the prosecution. Taja, Dulla, Nazir, Gulzar, Shahni and Muhammad Hayat were examined as eye-witnesses as P.W.2, P.W.3, P.W.4, P.W.5, P.W.6 and P.W.7 respectively. They received injuries during the incident. Apart from them Dr. Nafeez-uz-Zaman P.W.8 who conducted the medico-legal examination of the injured furnished the details of the injuries received by them. The injuries kept under observation were described by Dr. Muhammad Khan P.W.12 Radiologist as fractures.
6. The investigation was conducted by Ahmad Hayat A.S.-I. P.W.10 who recorded the prosecution witnesses and on completion of the investigation challaned the petitioners in the Court of Sardar Ahmad Chaudhry, Magistrate Section 30, Sargodha. The remaining two witnesses i,e, Muhammad Munir Constable P.W.1 and Muhammad Ameer Constable P.W.11 are from police and of formal nature. The learned trial Magistrate on conclusion of the trial, as noted above convicted the petitioners and awarded respective punishments as detailed above.
7. It is pertinent to note that all the petitioners have been found guilty under section 337-A(ii), P.P.C.
Read with section 149, P.P.C. And were convicted and sentenced as Qisas to cause Shajja Madihah on the head of Dulla to equalize the injury No,1 described in Medico-legal report Exh.P.D. And also with regard to Shajja Madihah on the head of Shahni described as Injury No,1 in the M.L.R. Exh.P.E.
The petitioners aggrieved by the conviction and sentence filed appeal as conferred by section 408, Cr.P.C. In the Court of learned Sessions Judge, Sargodha which was entrusted to Mr. Muhammad Akram Zaki, learned Additional Sessions Judge, Sargodha.
8. The learned Additional Sessions Judge upheld the conviction and sentences, however, with the exception regarding the award of sentence of Qisas to all the accused. With regard to the injuries covered by section 337-A(ii), P.P.C., it was observed that there was no possibility of Qisas as Qisas was un-excitable as similar hurt in similar manner on the same part of the body was practically not possible. Holding that it will be against the principles of equality enshrined by Islam because no equal and identical injury could be caused as Qisas, the sentence to this extent was modified and the petitioners were ordered to suffer six months' R.I. Each at also to pay amount of Arsh and Daman as awarded by the learned trial Magistrate.
9. During the course of trial, after close of the prosecution evidence, the accused petitioners were examined under section 342, Cr.P.C. They denied the allegations leveled by the prosecution against them and also disowned the recoveries as stated by the P.Ws. It was pleaded that in fact the complainant party i,e, Taja and others had caused injuries to them. They snatched gun from the complainant Taja who had already fired a shot in the air, so that he may not repeat the shot on them. It was further stated that at the instance of accused persons a cross-case had also been instituted against the complainant party which had been sent up for trial before the learned Magistrate. The accused persons examined Habib Ullah. Inspector/S.H.O. As D.W.1 who found Manzoor, Zahoor and Abdul Majeed as innocent and that the gun allegedly fired during the occurrence was in possession of Taja complainant which was licensed gun of his nephew Nazir.
10. D.W.2 Dr. Nafees-uz-Zaman stated that on 21-12-1991 he examined the members of the accused party and their medico legal reports were exhibited as Exh.D.A to Exh.D.F. According to the record Muhammad Mumtaz petitioner, Noor Muhammad petitioner and Muhammad Riaz petitioner were injured during the incident and also Mst. Shehnaz Bibi, Mst. Mehtab and Abdul Rasheed i,e, six persons received injuries at the hands of the complainant party. They were all examined by the doctor D.W.2 on 21-12-1991 and their medico-legal reports had been brought on the file.
11. In view of the statements of the accused persons, the instant case is of cross version. One version as put forward by the complainant has been noted in brief supra. The defence version which is revealed from the statements of the accused under section 342, Cr.P.C. And also from the fact that six persons from their side received injuries. The position boils down to the effect that five persons from the complainant party i,e, Taja, Gulzar, Nazir, Shahni and Dulla were injured and from the accused party, three petitioners i,e, Muhammad Mumtaz, Noor Muhammad and Muhammad Riaz and three Others companions coming to six including two women were injured. As both the parties accused each other to be aggressors, in such a situation in order to determine as to which of the version is true or more plausible, both the versions have to be placed in juxtaposition. The learned Courts below have erred in this respect, as the learned Magistrate as well as the learned Additional Sessions Judge although discussed the complainant's version i,e, Taja etc. And made a passing reference to the defence version but both versions were not juxtaposed and thereafter, no attempt was made to determine or to assess as to which of the party could be aggressor or if the same could not be determined then how the accused petitioners could be adjudged as guilty. With this background of the case I have examined the record and have also perused the judgments rendered by both the learned Courts below.
12. According to the learned Magistrate the accused petitioners were the aggressors and, therefore, they have been held guilty for the various injuries caused by them on the persons of various P. Ws.
And were convicted accordingly. To determine the salient features to be taken into consideration are, the place of occurrence, motive, number of injuries and also the number of participants and in some cases the fact whether they are males or females, as in the present case the complainant party in all received thirteen injuries. As against that the accused petitioners have six injured persons and the number of injuries received by them comes to about fourteen. Admittedly, the occurrence took place in front of the house of the accused petitioners. The motive set up by the prosecution itself is that, one Riaz petitioner was suspected to have illicit liaison with Mst. Rasoolan who was relation of the complainant and he used to visit in pursuit of his immoral activities. If that is so, the grievance would be more with the complainant party then with the accused persons.
Although the complainant has given twist to the facts and stated that a scuffle took place in between the parties, as a result of which petitioners had a grievance against him and his companions, therefore, they all were sitting in ambush. This story of scuffle or exchange of abuses does not appear to be very convincing especially with regard to the grievance or grouse which is stated to be with the accused who nourished the same. The basic dispute in between the parties or the grievance is that one of the accused petitioner had some illicit relations with Mst. Rasoolan, therefore, the same would naturally infuriate the complainant party against the accused petitioners. This is further supported by the fact that occurrence took place in front of the house of the petitioners and one of the members of the complainant party was armed with gun as well.
Even if the prosecution version is accepted that the gun was snatched from the complainant party by the accused then the fact remains that none of the accused persons used that gun against the complainant party and remained satisfied by snatching the same. The one of very important factors which has not been taken into consideration by the learned Courts below is that two of the womenfolk i,e, Mst. Shahnaz and Mst. Mehtab, are injured from the accused side. Womenfolk are normally not associated in order to commit aggression. If the accused persons were sitting in ambush in order to commit an assault then it is not possible that they would have associated their womenfolk also to join them. This important factor was either omitted by the learned Courts below or they failed to appreciate this aspect. It is an admitted fact that six persons from the accused side received injuries but none of the P.Ws. Explained the injuries sustained by them nor the learned Courts adverted to this aspect as to how and in what manner the injuries were received by them.
From these facts and circumstances it cannot be conclusively inferred that accused petitioner were aggressors or for that matter they were sitting in ambush to attack the complainant party. By taking into consideration the prosecution as well as defense version it may be difficult to determine as to which of the party is aggressor. In that event it was a case of free fight in between the parties and in form of melee it was rather impossible to see and assert with certainty as to who caused injuries to whom. In such a melee wherein, men and women are injured it would be rather paradoxical to infer that injuries on the person of each of the participants could be determined or ascertained. I am of the view that it is extremely doubtful to believe the complainant's version against the accused petitioners and at least they are entitled to the benefit of doubt. I have been informed that all the petitioners have already undergone two months' R.I. As convicts and their sentence was suspended thereafter. The prosecution as such has not been able to prove its case against the accused petitioners beyond doubt. They are extended to the benefit of doubt. This revision petition is accepted and they are acquitted of the charges against them. They are on bail and shall stand discharged of bail bonds.
13. Before parting with, the judgment an important question arose that in the event of award of sentence of Qisas the sentence is not executed unless confirmed by the High Court. A reference is, therefore, submitted to this Court for confirmation. As Qisas had been awarded reference would have been heard by this Court. The question, therefore, arose that in case the punishment of Qisas is awarded then the confirmation has to be made by this Court, therefore, the accompanying appeal if any by the accused persons should have been filed before this Court. Arguments were heard on this point and relevant law was also considered. Under section 408, Cr.P.C. Any person who is convicted of an offence by a Magistrate 1st Class, has a right of appeal before the Court of Session. The accused persons who were convicted under various sections by Magistrate 1st Class, therefore, had a right to file an appeal against their conviction under section 408, Cr.P.C. And that right has not been taken away through any amendment so far. The amendment in section 338, P.P.C. Has been made that confirmation of any sentence of Qisas is required to be done by this Court but if a conviction against which appeal is available and the same is preferred and punishment of Qisas is set aside then there does not arise any question of confirmation, therefore, there can be no ambiguity with regard to forum of appeal which is expressly provided by law to be the Court of Sessions, would remain the same and in case the lower appellate Court up-held and maintains the sentence of Qisas then of course confirmation would be considered by this Court but in case the sentence of Qisas is refused or modified then their does not arise any question of its confirmation. In the present case the sentence of Qisas was set aside and modified with the sentence of imprisonment, therefore, their remains no ambiguity. In order to explain the ambiguity it is observed that the sentence of Qisas if subject to appeal, the appeal would be preferred before Sessions Court in the first instance and if the same is upheld and maintained, the sentence will be submitted to this Court for confirmation. If the same is modified then there is no question of confirmation of the same.
14. The revision as well as Criminal Miscellaneous No,655/M of 1998 stand disposed of in the above terms.