' This judgment will dispose of Criminal Appeal No,623 of 1992 as well as Criminal Revision No,689 of 1992.
2. Through this appeal judgment, dated 26-7-1992 passed by Mehr Muhammad Altaf Hussain, Additional Sessions Judge, Faisalabad has been assailed. Initially seven persons namely Dhaular Sher, Naika, Zafar, Hamid, Muhammad Nawaz, Ayub and Muhammad Iqbal were sent up to face trial before Mr. Fakhar Hayat, Additional Sessions Judge, Faisalabad under sections 302/307/148/149, P.P.C. For forming unlawful assembly and arming themselves with deadly weapons and in prosecution of the common object committing murder of Ranjha and inflicting fire-arm injuries to Muhammad Mansha P.W. On 21-1-1985 at 1-00 p.m., within the area of Chak No,503/GB (Turkhanwali) Tehsil Sammundri, District Faisalabad. Out of them Iqbal and Ayub were acquitted whereas the remaining five accused persons were convicted and sentenced under sections 302/307/148 read with section 149, P.P.C. And sentenced to undergo imprisonment for life and other sentences. Against that judgment Criminal Appeal No,104 of 1988 was filed in this Court wherein the conviction was set aside and the case was remanded to the learned Sessions Judge to try it himself or to entrust the same to any other Additional Sessions Judge. On remand the trial was entrusted to Mehr Muhammad Altaf Hussain, Additional Sessions Judge, Faisalabad whose judgment has been impugned in the present appeal i.e, Criminal Appeal No,623 of 1992.
3. On remand all the accused persons (five in number) were convicted under.Section 148, P.P.C. And sentenced to undergo R.I. For one year each; under section 302/149, P.P.C. To undergo imprisonment for life with a fine of Rs,10,000 each and in default to suffer further R.I. For two years each. All the accused were ordered to pay compensation of Rs,20,000 each to the legal heirs of the deceased or in default to suffer further S.I. For six months. All the aforesaid five accused persons were convicted under sections 307/149, P.P.C. For causing injuries to Muhammad Mansha P.W. And sentenced to five years R.I. Each with a fine of Rs,500 each and in default to undergo further R.I. For one month each. Compensation of Rs,500 each was also ordered to be paid to the injured P.W. Or to suffer R.I. For one month each. All the sentences were ordered to run concurrently. They were also extended the benefit as provided by section 382-B, Cr.P.C.
4. The prosecution case as disclosed from the F.I.R. (Exh.P.F.) by the complainant is as under:-- ' "I am permanent resident of village Sultan-ke-Baghailey, Police Station Kamalia. I had leased out four Acres of my agricultural land situated in Mauza Sultan-ke-Baghailey, adjacent to Terkhanwali locality to Hamand son of Naseer, Caste Tarkhan, resident of Terkhanwali locality, in the area of Chak No,503-GB for five years. The lease period had expired and Hamand abovementioned wanted to purchase this piece of land from me and had paid some earnest money. Today at about 1-00 p.m. I alongwith Ranjha, Rehman, my sons and Muhammad Mansha, son of Akbar, Caste Sheikh, resident of Chak No,621-GB went to the locality of Terkhanwali to obtain the balance amount from Hamand abovementioned. Hamand was not present there. As such, his brother Bashir alias Mahia, was present, I demanded money from him. In the meanwhile Zafar son of Noor, Caste Baghaila, resident of Mauza Sultan-ke-Baghailey happened to pass on a road, nearby the Dhari of Hamand Turkhan on a bicycle. Who saw us sitting there. After some while, Dhaular Sher son of Naurang, Nawaz, Hamid, Muhammad Iqbal, Ayub and Naika son of Chakkar, all armed with .12 bore guns, Ayub son of Muhammad Yar, armed with carbine and Zafar son of Noor, armed with a rifle, all Baghaila by caste, residents of Mauza Sultan-ke-Bagheley came there and Dhaular abovementioned shouted a Lalkara that they had come to take the revenge of abduction of Mst.
Sabban Bibi. We all, therefore, started running to save our lives. Ranjha my son and Muhammad Mansha, started climbing up the Kotha of Ghulam Mastry to save themselves. Dhaular and others, seven persons, drew nearer. As such, Dhaular fired with his .12 bore gun at Ranjha, my son, which hit him on his back, in the process of the climbing up the Kotha, who fell on the Kotha facewise. Nawaz fired at Muhammad Mansha, hitting him on his right calf. Ranjha my son, had seven mm licensed gun and Rehman had also .12 bore licensed gun. Rehman, my son, fired at the assailants party in the right of self-defence. Thereafter, all the accused persons . Encircled us and continued indiscriminating firing. When they became assured that Ranjha had expired, then all the accused went back while firing. The entire occurrence was witnessed by Mehra son of Ismail, caste Baghaila and Mst. Gullan, my daughter P.Ws. Having attracted to the spot. I climbing over the Kotha saw that Ranjha my son, had expired and was smeared with blood.
' Motive behind this occurrence is that Ranjha, my son had abducted Mst. Sabban Bibi daughter of Noor for which, a case was registered at Police Station Kamalia. Mst. Sabban Bibi, is sister of Zafar etc. Accused and first cousin of Dhaular Sher co-accused. All the accused had nourished grudge against us, due to which, all the accused, seven persons, Dhaular Sher etc. In prosecution of their common object, had murdered my son Ranjha to take the revenge of abduction. The dead body of my son Ranjha is lying at the spot, for whose custody, Muhammad Mansha and Mahra were left there and I have to lodge the report, criminal proceedings be initiated."
' After registration of the case Sanaullah Khan, Inspector took up the investigation and on completion of the same submitted challan against all the seven accused persons. As observed above on conclusion of trial two accused persons were acquitted. The remaining five persons were convicted and sentenced as detailed above.
5. The prosecution with a view to establish the guilt of the accused persons examined thirteen witnesses. Dr. Ghulam Rasul who was previously examined as P.W.1 was examined again as C.W. 1 on remand. He conducted the post-mortem examination on 22-1-1985 and found the following injuries on the person of the deceased:-- "(1) A lacerated wound (fire-arm wound) 2 c.m. x 1 c.m. x skin deep upon back of left shoulder, it was oblique in direction.
(2) A lacerated wound (fire-artn) 3/4 c.m. x 3/4 c.m. x chest cavity deep upon back of left side of chest close to vertebral column. Its margins were inverted and were neither black nor scratch.
Pellet passing through the thoraxic portion vertebral column then passed through the lower lobe of right lung and then through the middle of the same lung, then piereced the prital pleura upon the front of chest and then through the right second intercostral space then pectrolic major muscle and was found embedded in subcotanious tissue upon the front of right half of chest."
' Dr. Muhammad Ibrahim who was previously examined as P.W.5 was reexamined after remand as C.W.2. He conducted the medical examination of Muhammad Mansha P.W. And Muhammad Nawaz accused on 22-1-1985 and found the following injuries on their person:-- "(1) Muhammad Mansha ' Two rounded wounds about 1 c.m. Each about 1-1/2 inch apart on the posterial aspect of the right leg, at the junction of middle and lower 1/3rd's. The edges were lacerated and blackish. The injury was simple by gun shot. The probable duration of this injury was twelve to twenty-four hours.
(2) Muhammad Nawaz ' Minute rounded wound with irregular edges on occipital prominence of the skull with a hard swelling about 1/2 c.m. Dia to the right side of the wound under the skin, about 1-1/2 inch away from the wound. This injury was simple in nature. Its duration was five to six days, on the day of examination. The kind of weapon was probably by gun shot."
' Hassan Ali, Shahid, P. Ws. 2 and 3 respectively are police officials and their evidence is of formal nature. P.W.4 Aurangzeb prepared the site plan Exhs.P.B. And P.B./1 in the scale of 32' = 1". All the notes in black were given by him. P.W.6 is Farid son of Haitam is the complainant and eyewitness.
He has made statement in line with the version given by him in the F.I.R. Lodged by him which is Exh.P.F. P.W.7 Muhammad Mansha is an injured P.W. And witness of the occurrence. He has made statement similar to that of P.W.6. P.W.8 Rehman is the third eye-witness who has given eyewitness account of the occurrence which corroborates the version already given by the aforesaid two eye- witnesses. P.Ws.9, 11 and 12 are formal witnesses and their evidence is formal in nature. P.W.10 is the Investigating Officer who conducted the investigation and arrested Dhaular Sher, Naika, Zafar and Nawaz accused on 26-1-1985. On 2-2-1985 Dhaular Sher led to the recovery of .12 bore double- barrel gun P.37 from his residential Ahata and which was taken into possession by recovery memo.
Exh.P.1 alongwith its licence. Some other accused persons also led to the recoveries but they are not of much significance. On completion of the prosecution evidence the learned D.D.A. Submitted Exh.P.X. Report of Forensic Science Laboratory and Exhs.P.Y. And P.Z. Reports of Chemical Examiner and Serologist respectively and closed the prosecution case.
6. The prosecution case was put up to the accused persons who denied the same and stated that they were implicated on account of enmity. They also denied the recoveries effected from them.
None of the accused opted to appear as his own witness in defence as prescribed by section 340(2), Cr.P.C. None of the accused person produced any defence. On conclusion of the trial the learned trial Judge recorded the conviction and sentence as described above.
7. Arguments heard, and record perused.
8. The learned counsel appearing on behalf of the appellants has argued that admittedly there is enmity in between the parties. No corroborative evidence has been produced by the prosecution, therefore, the statements of witnesses cannot be relied upon; that the injuries on the person of P.Ws. Prove their presence at the place of occurrence but that does not mean that they were speaking whole truth; that the evidence against the present appellants and the acquitted co- accused is identical and similar, therefore, following the rule of consistency the appellants should have also been acquitted; that the recoveries effected from the accused persons are of licensed weapons, therefore, they do not improve the case of prosecution in any manner; according to the prosecution version the position of the deceased person was such that he could not receive injuries in the manner stated by the prosecution, therefore, there is a conflict in between the prosecution case and that of the medical evidence. In that eventuality benefit of doubt should be extended to the accused persons; lastly Muhammad Mansha accused himself has received fire- arm injuries at the hands of Muhammad Nawaz P.W., therefore, the possibility of free fight at the spur of the moment at the occurrence in between the parties cannot be ruled out.
9. On the contrary the learned counsel appearing on behalf of the complainant and for the petitioner in criminal revision has argued that injuries on the person of P.Ws. Establish their presence and they have no reason to tell a lie, therefore, their statements should be relied upon. It has further been stated that all the accused persons have committed pre-planned and pre- meditated murder, therefore, they are vicariously liable under section 149, P.P.C. And have rightly been convicted and sentenced. Lastly it was argued that medical evidence supports the prosecution witnesses in substance and minor discrepancy as pointed out by the learned counsel for the appellants does not in any way impairs the prosecution case.
10. Before making comments on the evidence an important development has taken place. Dhaular Sher who is the main accused and whose shot hit the deceased had admittedly died during the pendency of his appeal. According to the learned counsel for the appellant he was murdered at the instance of the complainant party. How and in what manner and by whom he was murdered is not relevant for disposal of this appeal. However, on account of admitted fact that he is dead his case is covered by section 431, Cr.P.C. His appeal, therefore, stands abated. The sentence of imprisonment, therefore, becomes inconsequential. However, his sentence of fine does not stand abated. The learned counsel for the appellant has informed that none of his legal heirs has contacted him nor he is in a position to submit if any of the legal heirs intend to pursue the appeal in respect of imposition of fine on him. His sentence of fine, therefore, remains unabated unless his appeal is accepted and he earns a clean acquittal.
11. I have gone through the evidence of the witnesses with the help of the learned counsel for the parties.. The eye-witness account has been furnished by Farid P.W.6, father of the deceased, Mansha P.W.7, and injured P.W. And Rehma P.W.8, who is brother of the deceased. Although the witnesses are consistent with regard to the infliction of injuries on the person of Ranjha deceased which according to them were caused by Dhaular Sher appellant but the witnesses have not explained as to how Muhammad Nawaz accused received fire-arm injury during the course of occurrence. Since the same has not been explained, therefore, the benefit of doubt should extend to the accused persons. Keeping in view the facts and circumstances of the present case it is not difficult to infer that the occurrence has resulted on account of sudden flare-up at the moment wherein Ranjha deceased, Mansha P.W.7 and Nawaz accused received fire-arm injuries. The occurrence does not appear to be the result of pre-meditation and preplanning. Had that been so the damage on the persons of the complainant party would have been much more. The injury on the person of Nawaz is of much significance and in the presence of that injury the prosecution version that the death of Ranjha has occurred on account of sudden flare up cannot be repelled.
When the occurrence is not the result of pre-meditation or preplanning then according to the established law every accused person is liable for the act committed by him during the occurrence. In the instant case Naika, Zafar and Hamid appellants have not caused any injury either to the deceased or to the injured P.W. Mansha, therefore, they cannot be held responsible vicariously for the murder of Ranjha or injury to P.W.7 C Muhammad Mansha. Their participation in the present occurrence lacks reliable corroboration, therefore, they are extended the benefit of doubt and are acquitted of the charge against them.
12. As regards Dhaular Sher he is responsible for inflicting fatal injury on the person of Ranjha deceased. He was rightly convicted under section 302, P.P.C. Since he is dead his appeal stands abated but the sentence of fine will remain intact and the same is recoverable from his estate if any left by him. Similarly the amount of compensation awarded to the heirs of the deceased will not stand abated on the basis of principles laid down under section 431, Cr.P.C. As such the amount of fine of Rs,10,000 alongwith compensation of Rs,20,000 is recoverable from him as a charge on the estate if any left by him.
13. So far as Nawaz accused is concerned he has caused injury on the person of Mansha P.W.7.
Since he is injured, therefore, his presence at the time of occurrence cannot be denied. He is liable to be convicted under section 307, P.P.C. For causing injury on the person of Mansha, therefore, his conviction is upheld. However, keeping in view that case was registered against him and his co- accused on 21-1-1985 and as such he is undergoing ordeals and hardships of investigation and trial since 1985 i.e, 12-1/2 years back; and was convicted in the first instance in the year 1988 and subsequently on remand on 1992; and also the fact that in the first instance he was convicted in 1988 when he had undergone more than three years of confinement and subsequently on 26-7- 1992 and he was admitted to bail on 6-2-1995 as such he remained in jail for a period of two years and eight months; he has undergone imprisonment for a period of more than 5-1/2 years. The, learned counsel for the complainant and the learned counsel for the State have not been able to controvert the same. I, therefore, while maintaining the conviction under section 307, P.P.C. Reduce his sentence of imprisonment to that he has already undergone. His conviction under sections 302/149, P.P.C. Is set aside.
13. As a result of the above discussion the Criminal Appeal (Criminal Appeal No,623 of 1992) is partly accepted. Naika, Zafar and Hameed are present in Court. They are on bail. They are discharged from the bail bonds.
14. The learned counsel for the petitioner although filed criminal revision against all the five convicted appellants but he had intended mainly to press revision against Dhaular Sher who has since dead. As observed above his appeal stands abated. However, his sentences of fine and compensation are ordered to be maintained and they shall remain intact. The revision petition qua remaining four respondents i.e, Naika, Zafar, Hamid and Nawaz is dismissed.