' I intend to dispose of Criminal Appeal No, 1372 of 2000 filed by Javaid Iqbal, Criminal Appeal No, 1370 of 2000 filed by Muhammad Sultan, Criminal Appeal No, 1307 of 2000 filed by Khadim Hussain and Criminal Appeal No, 1306 filed by Talib Hussain arising out of the same judgment dated 21-8- 2000 passed by Muhammad Zahoor Abbasi, learned Sessions Judge, Khushab by which he had convicted Khadim Hussain in Criminal Appeal No, 1307 of 2000 and Muhammad Sultan in Criminal Appeal No, 1370 of 2000 respectively under section 302-B/34, P.P.C. And has sentenced them for imprisonment for life with the direction for the payment of compensation of Rs, 50,000 to the legal heirs of Muhammad Tufail deceased and in case of default in payment of the compensation they have to further undergo 6 months R.I. In Criminal Appeal No, 072 of 2000 Javaid Iqbal and in Criminal Appeal No, 1306 of 2000 Talib Hussain have been convicted under section 337/A-2, P.P.C.
And have been sentenced to 5 years R.I. With Arsh 5% of the total Diyat amount of Rs, 2,51,625.04.
2. This judgment has been passed in case F.I.R. No, 45 (Exh.P.PP) registered on 28-1-1999 at 9-15 plm. At Police Station Jauharabad under sections 302/148/149, P.P.C. Registered on the statement of Pervaiz Akhtar not produced as he died during the trial. His statement was recorded by the Shimsher Ali S.I / S.H.O., P.W.14.
3. This F:I.R. Has been lodged .For an occurrence which took place on 28-1-1999 at 8-00 p.m. In Ramzan Colony 2 k.Ms. Away from Jauharabad Police Station.
4. Brief facts of the prosecution case are that the complainant claims that at 8-00 p.m. He alongwith his two brothers Muhammad Tufail and Muhammad Altaf and Azhar Abbas his nephew were going towards the house of their brother Muhammad Ramzan and when they reached on thoroughfare near Bhatti House, Muhammad Sultan appellant armed with Khanjar, Khadim Hussain armed with Khanjar, Talib Hussain armed with Chhuri, Muhammad Irfan armed with Soti, Mst. Bevi armed with. Rorra, Muhammad Farooq armed with Soti and Muhammad Javaid armed with iron rod who were sitting in the house of Khadim Hussain and had concealed themselves there, came out of the house while raising Lalkaras Muhammad Sultan gave Khanjar blow on Muhammad Tufail hitting him on the front of his chest. 2nd blow of Khanjar was given by Khadim Hussain to Muhammad Tufail hitting him on his back. Talib Hussain gave Churri blow to Ramzan brother of complainant hitting him on the left ear. Muhammad Irfan and Muhammad Farooq gave one Soti blow each to Altaf hitting on his head towards right and left sides. Mst. Bevi gave Rorra blow do Muhammad Tufail hitting him on his chest. On the hue and cry of the complainant, Muhammad.
Raman, Muhammad Ijaz and Fayyaz Hussain also attracted to the spot. Muhammad Farooq gave Soti blow to Muhammad Ijaz hitting him on the front side of head. Thereafter, 'Muhammad Irfan gave a Sota blow to Muhammad Ijaz hitting him on the left side of head. Muhammad Javaid gave iron rod blow to Muhammad Ramzan on his head towards front side. Muhammad Farooq and Muhammad Javaid also gave Soti blows each to Muhammad Ramzan and Muhammad Ijaz. Talib Hussain gave a Churri blow to Fayyaz Hussain hitting him on the palm of left hand. Muhammad Irfan gave a Soti blow to Azhar Abbas hitting him on his head towards right side. Complainant did not come near to the injured due to the fear. On the hue and cry of the complainant, numerous persons attracted to the spot and rescued the injured from the clutches of the accused. During the occurrence the accused side also received injuries and the injured were taken to the civil hospital where Muhammad Tufail succumbed to his injuries.
5. The motive of the occurrence has been alleged that the accused party had restrained the complainant party from entering into the street passing in front of house of Khadim Hussain and due to this reason the accused in furtherance of their common object and in consultation with each other had committed this occurrence. The appellants Khadim Hussain, Muhammad Sultan and Talib Hussain were- arrested on 5-9-1999.
6. Muhammad Javaid was arrested on 8-2-1999 Iron rod P.8 was recovered from Javaid on 9-2- 1999 while blood-stained Churri P.7 from Talib .Hussain was recovered on the same day in the presence of Pervaiz Akhtar not produced and Muhammad Siddique M.C. P.W.7. The recovery was effected by P.W.14 Shamsher Ali S.I./I.O. Khadim Hussain has got recovered Khanjar P.4 on 8-2-1999.
Sultan had got recovered Khanjar P.5 on the same day in the presence of Muhammad Javaid P.W.5 and Atta Muhammad given up P.W. The recovery was effected by the Investigating Officer P.W.14 and blood-stained Churri was taken into the possession from the spot while Rorra was also taken into possession which allegedly had seen used by Mst. Bevi during the occurrence.
7. During the investigation the accused had taken a stand that they had also received injuries on the person of Khadim Hussain, Talib Hussain and Sultan Ahmad during the occurrence. After the completion of the investigation the challan was submitted in the Court of learned Sessions Judge Khushab. The charge was framed against the appellant and their co-accused which was denied by them. The prosecution in order to prove the guilt has produced 14 witnesses. P.W.1 Arif had taken the dead body to the mortuary and also handed over to the Investigation Officer the last-worn clothes of the deceased. P.W.2 Khaliq Dad Constable had taken the parcel of blood-stained earth to the Chemical Examiner. He had also witnessed the recovery from Muhammad Khan accused of Soti P-3. P.W.3 Agha Hussain, Constable had taken a parcels containing Daggers and Churri to the chemical examiner. P.W.4 Muhammad Salim Draftsman had prepared the site-plan Exhs.PC and PC/1. P.W.5 Muhammad Javed is the Witness of the recoveries effected from Khadim Hussain and Muhammad Sultan accused. P.W.6 Khurshid Ahmad is a witness of recoveries from the spot i,e,, blood-stained earth and Rorra. P.W.7 Muhammad Siddique is a witness of recovery from Muhammad Javaid and Talib Hussain appellants. P.W.8 Shafqat Hussain, MMC had kept the parcels in the Malkhana and also handed over the same to the above said constable for onward transmission to the Chemical Examiner. P.W.9 had identified the dead body at the time of post- mortem examination P.W.10 had medically examined all the injured P.Ws. And also conducted the post-mortem examination of Muhammad Tufail. P.W.11 Muhammad Altaf, P.W.12 Muhammad Ramzan and P.W.13 Muhammad Ejaz, three eye-witnesses, have been produced in order to prove the ocular account: P.W.14 Shamsher ,Hussain Inspector, S.I. Was the I.O. In this case. After the close of the prosecution evidence the accused in their statements under section 342 denied the allegations and on a question that "why this case is against you and why P.Ws. Have deposed against you" replied as under: "True facts are that on the day of occurrence, children of my family had a quarrel with children of Muhammad Tufail and others. Due to this incident, at about 7-00 p.m. On the day of occurrence, Muhammad Tufail and others duly, armed carried out assault on my house. Mother of Muhammad Sutlan accused was available in the street at that time. To avoid the conflict, mother of Muhammad Sultan chained the Zoor,. Muhammad ' Tufail and others unchained the door, and thereafter carried out assault at me and others. We were dragged out of house. I was assaulted with a Churri and blows. I along with others made a poise which attracted neighbourers. They also interfered and the result was there was a mellee. During the course of mellee, from both sides persons were injured. It is an assault carried out in a pre-planned manner by Muhammad Tufail and others. I was also injured. I remained admitted in the hospital. To conceal the aggression, time of occurrence was firstly changed by Parvez Akhtar but subsequently, he provided the time of occurrence as 7-30 p.m. During trial. Complainant party had minimized their role and this cage has been falsely got registered against me and others. We made best efforts to get a case registered against the accusedbut complainant party prevailed upon the matter and case was not got registered."
' Accused also produced in defence the statement of Dr. Muhammad Sibtain Shah, Medical Officer who had medically examined Khadim Hussain, Muhammad Sultan and Talib Hussain appellants.
After hearing the arguments of both the parties the impugned judgment has been passed in which the appellants have been convicted. Remaining accused Muhammad Irfan, Muhammad Farooq and Mst. Bevi have been acquitted as the prosecution had failed to prove the case against them.
8. Learned counsel for the appellants contends that the prosecution evidence is not confidence- inspiring and is not worthy of reliance as the prosecution witnesses have intentionally suppressed the injuries received during the occurrence by Khadim Hussain, Muhammad Sultan and Talib Hussain. According to the learned counsel for the appellants Khadim Hussain received incised wound on the right eye brow and a lacerated wound on the top of skull while Muhammad Sultan also received an incised wound on the left hand and lacerated wound on the left side of the skull.
Talib Hussain received a contused wound and multiple abrasion on the right elbow and right thigh.
All the three injured accused were medically examined on29-1-1999 at 12-00 noon and the injuries have been proved through the statement of Dr. Muhammad Sabtain D.W 1. It is further contended that in the F.I.R. It was mentioned that the accused party received some injuries during the occurrence but the witnesses while appearing before the trial Court had denied the receipt of injuries by the accused during the occurrence. It is a contradiction which causes serious doubt in the prosecution case. It is further contended that the occurrence had taken place in the night and the possibility of explaining of each and every injury to all the injured persons by the witnesses is doubtful. On the other hand, the witnesses have explained each and every injury received by all the eye-witnesses including the deceased during the occurrence but have not stated a single word about the injuries received by the accused party. It is sufficient to hold that the witnesses are not truthful witnesses and the conviction and sentence passed on the statements of such witnesses is liable to be set aside. It is further contended that there is no evidence except the statements of three witnesses who claim themselves as eyewitnesses. On the other hand, the cross-version of the appellants is more plausible and worthy of reliance. Hence the appeal may be accepted and they may be acquitted. The learned counsel appearing on behalf ,of Javed Iqbal appellant contends that two injuries have been attributed to Javed Iqbal. Both the injuries attributed to the appellant have not been proved on the record. One injury on the person of Ejaz on the left shoulder was not found during the medical examination by the doctor. Hence the only injury which is attributed to Javed Iqbal appellant is injury on the head of Ramzan which injury at the most falls under section 337-A(ii), P.P.C. And the imprisonment of 5 years is the maximum sentence which has been passed.
The appellant has served about one year and ten months sentence in the jail and has been released on bail just four days ago by this Court. He had also served about three months in the jail after his arrest during the trial hence the reduction of his sentence from five years to that of the sentence which he has already undergone will meet the ends of justice.
9. I have heard the learned counsel for the parties and perused the record carefully. The prosecution in order to prove the guilt of the accused has produced three eye-witnesses namely Muhammad Altaf, Muhammad Ramzan and Muhammad Ejaz P.W.11, P.W.12 and P.W.13 respectively.
All the witnesses have given the details of injuries received by Muhammad Tufail deceased.
Muhammad Sultan appellant according to these witnesses gave Khanjar blow at the lower portion of chest of Muhammad Tufaul and Khadim Hussain appellant had given a blow on the back of chest of Muhammad Tufail. Talib Hussain appellant has been attributed an injury with the Churri on the left ear of Muhammad Ramzan while Javed Iqbal appellant has been attributed injury with iron rod on the person of Muhammad Ramzan on his head. The second injury is attributed to him which had been caused to Muhammad Ejaz P.W.13 on the left shoulder which is not corroborated by the medical evidence. Hence only one injury can be said to have been caused by Javed Iqbal to Muhammad Ramzan P.W. Both Javed Iqbal and Talib Hussain have been convicted and sentenced to five years R.I. Under section 337-A(ii), P.P.C. Which is the maximum punishment of this offence.
Both of them have suffered almost two years in jail during the trial and after the conviction. In peculiar circumstances of the case the sentence already undergone by these two appellants will meet the ends of justice because while deciding their appeals this Court has to keep in mind the injuries received by the accused party during the occurrence. Hence their sentences are reduced from five years to the sentence they have already suffered. Hence the appeals of Javed Iqbal and Talib Hussain are dismissed by reducing their sentences. All the three witnesses have failed to explain the injuries received by Khadim Hussain, Muhammad Sultan and Talib Hussain appellants who were examined by Dr. Muhammad Sabtain Shah D.W. 1 on 29-1-1999 and the duration of the injuries shows that the possibility of receiving of injuries by the said persons from the hands of the complainant party during the occurrence cannot be ruled out. The factum of receiving of injuries during the occurrence by the above said accused persons is also supported by the statement of Pervaiz Akhtar complainant under section 154, Cr.P.C. He admitted that the accused side also received the injuries. Pervaiz Akhtar could not be produced in the Court as he died during the trial but the factum of mentioning of the receiving of injuries in the F.I.R. Cannot be ignored and is borne out from the statement which has been duly exhibited by the Court in this case. Hence I have no hesitation in holding that the accused have also received injuries during the occurrence and injury No,1 1 on the person of Khadim Hussain is an incised wound on the right eye brow. Similarly injury No, 1 on the person of Sudan is also an incised wound on the left hand. Hence it can safely be held that the injuries received by the accused/appellant during the occurrence is with sharp-edged weapon. The non-explaining of the injuries by the prosecution witnesses has caused serious doubt in the prosecution case and the statements of the prosecution witnesses cannot be accepted in toto. Hence while deciding the appeal in hand this Court has to keep in mind the injuries received by the accused and suppression of these injuries by the complainant party and the eye-witnesses and has also to keep in mind the number of injuries received by the complainant party during the occurrence. I am not inclined to acquit the appellants due to this reason as it has been established on the record that these appellants had taken part in the occurrence and the factum of receiving of injuries by them also establishes the same. Muhammad Sultan had caused Khanjar blows on the lower portion of chest of Muhammad Tufail deceased while Khadim Hussain appellant had caused a Khanjar blow which hit Muhammad Tufail at the back of his chest. All the three eye- witnesses also received the injuries during the occurrence and their presence at the spot, cannot be doubted. All the three witnesses have made the consistent statements and there are no contradictions on material points in their statements. Hence their statements are worthy of reliance to the extent of involvement of all the appellants in the occurrence in the manner as has been narrated by them. Hence the prosecution has proved that the appellants were present at the spot but the appellants have taken a stand that the occurrence has not taken place in the manner as has been stated by the three eye-witnesses rather the complainant party was the aggressors.
According to the accused, they had come to the house of Muhammad Sultan and they carried out an assault at Khadim Hussain and others and injuries have been received by both the sides in mellee. Hence due to the cross-version and the proof of receiving of injuries by the appellants during the occurrence the sentence passed under section 302(b), P.P.C. Is liable to be converted under section 302(c), P.P.C. And their sentences are reduced from life imprisonment to fourteen years' R.I. However? The compensation and the consequence in default of payment of fine shall remain intact. Hence the sentence passed to both the appellants is reduced from life imprisonment to fourteen years' R.I. Each under section 302(c), P . P.0 .
' The nut shell result is that with the above said modification in the quantum of sentence passed by the learned trial Court through the impugned judgment, all these four appeals are dismissed.
Sentence reduced.