' AMAN-UL-ALLAH KHAN, J.---Appellant Muhammad Ashraf son of Qadir Bakhsh, Bahar, Haji Dur Muhammad and Akram sons of Bahar, Dil Jan son of Qadir Bakhsh and Muhammad Rafiq son of Khuda Bakhsh were tried by the learned Additional Sessions Judge, Panjgoor under sections 302/147/148/149, P.P.C. For committing the murder of deceased Izzatullah and causing injuries to the prosecution witnesses; have been convicted as follows:-- ' Appellants Muhammad Ashraf and Bahar have been convicted under section 302, P.P.C. To death sentence and fine of Rs,1,00,000 each.
' Appellants Ikram, Dil Jan and Muhammad Rafiq have been convicted under section 324, P.P.C. To suffer R.I. For five years and a fine of Rs,2,000 and appellants have been convicted under section 147, P.P.C. To undergo one year each and under section 149, P.P.C. To further undergo one year each vide judgment dated 8-6-2001.
2. Being aggrieved from the impugned judgment, the appellants have jointly preferred the instant appeal. The learned Additional Sessions Judge has also made a reference to this Court for confirmation of the death sentence. By this common judgment, we propose to dispose of both of appeal and the Murder Reference.
3. The prosecution case is that on 16-1-2000 P.W.1 Ghulam Mustafa had gone to cut woods. When he came back to his house, at Garmakan, in the evening, after Asar prayers, he was informed by his house mates that Muhammad Akram and Ashraf had beaten his son Nadir. He told his house mates that he would talk to their elders. He met Qadir Bakhsh and narrated the incident to him who assured him that he will talk to Muhammad Ashraf and Akram after Maghrib prayers and thereafter, he complained to Haji Dur Muhammad that his grandson Akram and Ashraf had beaten his son and they may be asked to mend their ways. Haji Dur Muhammad got angry and appellant Bahar who was standing nearby stated that if he had been there, he would have taught his son a lesson and told Rafiq, Wali Jan, Ashraf to get hold of him and matter flared up and they started fighting. In the meanwhile Izzatullah who was coming from the mosque after offering Maghrib prayers was stabbed by Ashraf with a dagger and inflicted injury on the left side of his ear; he fell down and became unconscious. Thereafter accused persons went to their house and they brought Izzatullah to hospital. He further stated that appellant Bahar was armed with a pistol. In the hospital Shakeel and Qadeer came and thereafter Izzatullah succumbed to the injuries and report was lodged in the Police Station. At the time of lodging of the report, Inayatullah and Barkat Ali were also present. It is pertinent to mention here that as per prosecution version, F.I.R. Was lodged by injured Izzatullah himself which has not been produced on record nor report as stated by P.W.1 Ghulam Mustafa was brought on record. It was alleged from the complainant side that the investigation of the case was conducted improperly. Thus, a Constitutional petition was also filed before this Court wherein after going through the record of the case, re-investigation was ordered to be conducted by an impartial Investigation Officer. The said judgment has been reported in PLD 2001 Quetta 30.
Hence case was re-investigated by P. W.14 Abdul Karim Bangulzai, S.H.O., Police Station Panjgoor. He arrested the accused persons, prepared site-plan Exh.P.14-A and submitted challan Exh.P.14-B before Additional Sessions Judge, Panjgoor. Charge was framed under sections 302/147/148/149, P.P.C. Which was denied by the appellants. To substantiate its allegations, the prosecution produced as many as 14 witnesses as follows:--
(1) P.W.1 Ghulam Mustafa.
(2) P.W.2 Kishwar Nazeer.
(3) P. W .3 Inayatullah.
(4) P.W.4 Badal Khan.
(5) P. W . 5 Khalil Ahmed.
(6) P.W.6 Dr. Syed Ali.
(7) P.W.7 Dr. Shakil Ahmed.
(8) P. W . 8 Muhammad Rafiq.
(9) P.W.9 Karim Dad.
(10) P.W.10 Dr. Syed Ali.
(11) P.W.11 Dr. Amanullah.
(12) P.W.12 Riaz Ahmed.
(13) P.W.13 Abdul Qadeer.
(14) P. W.14 Abdul Karim, Investigating Officer.
4. Statement of P.W.1 Ghulam Mustafa, P.W.2 Kishwar Nazeer, P.W.4 Badal Khan and P.W.5 Khalil Ahmed who claim to be eyewitnesses of the incident are similar. They deposed that after Maghrib prayers, the incident took place. When the quarrel started between the complainant and the accused party, deceased Izzatullah who was coming from the mosque was stabbed by Ashraf with a dagger. He received injury on the left side of his ear, he fell down and became unconscious.
Thereafter he was shifted in a taxi to the hospital where he succumbed to the said injury. Motive as set up was that prior to the incident a quarrel took place between Akram and Ashraf who had beaten Nadeem on picking berries from the house of the accused persons.
5. P.W.3 Inayatullah deposed that on the day of incident after Maghrib prayers he was present in his house and was informed that Izzatullah has been injured and has been taken to hospital.
Thereafter he alongwith his brother Ghulamullah went to the hospital where he saw that Drs. Qader and Shakeel were giving treatment.To Izzatullah who was lying unconscious. He further stated that in the meanwhile Moula Bakhsh, S.-I. Alongwith 2/3 police constables came to the hospital and asked about the accused persons. He gave the names of the accused persons to the police and the police left with Samiullah to arrest the accused persons, he further stated that he remained in the hospital with the deceased who never gained consciousness and died on the next day at about 11-00 a.m. He further stated that he came to know that Ashraf inflicted knife injury on the left side of the ear of the deceased and dispute erupted on plucking of berries.
6. P.W.6 Dr. Syed Ali was called as the medical certificate was not produced. Thereafter his statement was not recorded and he was recalled. However, he re-appeared as P. W.10. He also attended the deceased. He stated that when Izzatullah deceased was brought to the hospital he was first attended by Dr. Shakeel and thereafter he attended to him and issued medical certificate Exh.P/10-D wherein he opined that incise wounds on left mastoid region about 2 inches in length and one inch in depth and blunt injuries on the skull with four stitches and the patient was unconscious. He expired on 17-11-2000 at about 11-00 a.m. The cause of death was due to heamorrhage; weapon used was sharp and blunt.
7. P.W.7 Dr. Shakeel Ahmed attended the appellant when he was first brought to the hospital. He remained in the hospital till 8 O'clock. Thereafter Dr. Syed Ali P.W.6 attended him.
8. P.W.8 Muhammad Rafique stated that after Maghrib prayers when the incident was over he saw appellant Bahar who was coming towards his house and was armed with a pistol and he handed over a pistol to a woman and thereafter when he went to the place of incident he saw Izzatullah lying unconscious, and he, Kishwar Nazeer, Ghulam Mustafa and Badal and other persons took the deceased to the hospital who was attended by the doctors and remained unconscious throughout and on the next day he succumbed to the injury.
9. P. W.9 Karim Dad Constable accompanied the police personnel to the hospital whereby inquest report (not produced) was handed over to the police by Dr. Shakeel Ahmed.
10. P.W.11 Dr. Amanullah stated that on the next day on the request of Kishwar Nazeer he examined the deceased who had already expired and issued certificate Exh.P.11-A.
11. P.W.12 Riaz Ahmed, Health Inspector stated that on 16-1-2000 he was in the hospital when deceased Izzatullah had been brought in an unconscious condition and thereafter he alongwith the doctors attended the accused and at about 8-00 a.m. He left the hospital.
12. P.W.13 Abdul Aziz, compounder stated that while Dr. Shakeel Ahmed was attending to the accused, he was assisting him and he further stated that at the time of treatment, the deceased was unconscious.
13. P.W.14 Abdul Karim Bangulzai, S.H.O. Panjgoor is the third Investigating Officer of the case and submitted challan after investigation of the case.
14. Appellants were examined under section 342, Cr.P.C. And they denied the allegations levelled against them. Their statements were recorded on oath under section 340(2), Cr.P.C. Only one defence witness namely Basheer Ahmed was produced by the appellant Bahar.
15. On conclusion of the trial, the learned Additional Sessions Judge convicted the appellant in the terms mentioned above; hence this appeal and Murder Reference.
16 Mr. Ehsanul Haq, Advocate for the appellant contended that the deceased received one injury and was not even target of the attack and stated that the offence as alleged does not fall within section 302, P.P.C. He further argued that initially as per the original version, injury sustained by the deceased was attributed to Ikram and thereafter prosecution changed its version and implicated Ashraf for causing the same. He further contended that the eye-witnesses being highly interested, their statements have not been corroborated by any independent evidence. He lastly contended that no evidence regarding unlawful assembly has come on record; therefore, conviction under sections 147/148/149, P.P.C. Is not warranted and argued that it was a free fight occurring at the spur of the moment.
17. Mr. Amir Raza Naqvi, Advocate for the complainant contended that there are direct eye- witnesses involving the accused persons in the commission of the offence. Accused Ashraf has been ascribed a specific role for inflicting injury on, the person of the deceased. The learned counsel further argued that in the initial stages, due to the influence of the accused persons investigation was not held properly and thereafter on the directions of this Court, the matter was properly investigated.
18. Mr. Ghulam Mustafa Mengal, learned Assistant Advocate-General also opposed the appeal and adopted the arguments of Mr. Amir Raza Naqvi, Advocate for the complainant.
19. We have heard the arguments of the learned counsel for the parties and have also perused the record of the case.
20. Before dilating upon the arguments of the learned counsel for the parties it may be observed that no F.I.R. Has been tendered in evidence on record. As per the defence version, initially F.I.R. Was lodged by deceased Izzatullah himself while Mr. Ehsanul Haq, Advocate for the appellants contended that the prosecution had changed its version only to implicate the appellants, who are the elders. Therefore, the F.I.R. Lodged by Izzatullah was not produced; only children had been implicated in the case but to falsely implicate the appellants, the prosecution changed its version.
21. We are unable to agree with the said contention of the learned counsel for the appellant. It is admitted that the matter was ordered to be re-investigated by this Court vide judgment dated 4- 10-2001 titled Saadullah v. Government of Balochistan through Secretary, Home Department, Balochistan Secretariat, Quetta and 2 others, reported in PLD 2001 Quetta 30. It has been held that investigation of the case was not conducted properly and even the learned Advocate-General appearing on behalf of the State did not dispute the said fact and while disposing of the aforesaid' petition assurance was given to the Court that proper investigation will be held by an impartial officer. Thereafter the matter was investigated by P.W.14 Abdul Karim Bangulzai, S.H.O. Panjgoor.
22. Perusal of the record reveals that soon after receiving the injury, deceased Izzatullah became unconscious and remained so till the time of his death and during this period he never regained consciousness. There is nothing on record to infer that while deceased was admitted in hospital, his statement was recorded by any of the police officials though it has come on record through P.W.3 Inayatullah that S.-I. Moula Bakhsh visited the hospital but the deceased was unconscious at that time and he left the hospital premises without recording statement and went after the accused persons. The learned counsel also emphasized that since the F.I.R. Was lodged by the deceased himself; therefore, the same may be considered. It may be observed that the F.I.R. Was not even tendered in evidence by the prosecution and no efforts were made by the defence to bring the same on record and further by putting the prosecution and defence version in juxtaposition, the prosecution version seems to be more probable and confidence-inspiring to the extent that soon after receiving the injury, the deceased remained unconscious and further it has not been denied that initially to favour he accused persons, the investigation has been conducted in an improper manner.
23. Reverting to the next contention of the learned counsel for the appellant that the deceased was not the target of the accused persons, the statement of P.W.1 Ghulam Mustafa is very much relevant wherein he stated that after the Maghrib prayers when he complained to Haji Dur Muhammad that his grandchildren have beaten his son Nadeem, and they should mend their ways; he became furious and the appellant Bahar who was standing nearby stated that if he were present at the time of the fight he would have taken out the intestines of his son and in the meanwhile after exchange of some hot words, the fight started. Bahar asked Rafiq, Dil Jan, Ashraf and Muhammad Akram to get hold of him (Ghulam Mustafa), in the meanwhile Izzatullah after offering his prayers came there, Ashraf inflicted a knife injury on left ear and he fell down and lost consciousness. As per the statement of P.W. Ghulam Mustafa, it can be safely inferred that after exchange of hot words and on the instigation of Bahar, he was the main target of the appellants and in the meanwhile the deceased Izzatullah received knife injury which proved fatal resulting in his death. All the other prosecution witnesses have supported the version of P.W.1 to the extent of injury inflicted to Izzatullah by appellant Ashraf. As far as P.W.1 Ghulam Mustafa is concerned, as per his own statement he was to be attacked by the appellants but did not receive any injury and deceased Jzzatullah was injured during the fight. It may be observed here that the deceased only received one injury and none of the eye-witnesses were injured. Admittedly it was not a premeditated fight which started on the spur of the moment and the prosecution has not given details as to how he became injured except that the injury was inflicted by appellant Muhammad Ashraf.
24. Mr. Ehsanul Haq, Advocate for the appellant attempted to discredit the prosecution version and argued that since the prosecution version was changed and eye-witnesses being highly interested had falsely implicated the appellant; thus their statements need independent corroboration. It is pertinent to mention here that presence of the eyewitnesses at the place of incident has not been disputed and they were cross-examined at length but their credibility could not be shaken. All the prosecution witnesses have unequivocally stated that when the fight started, appellant Ashraf inflicted knife injury on the deceased and they stood firm, and could not be shaken. As far as second version, that the F.I.R. Was lodged by deceased Izzatullah himself, the same has been repelled for the reasons already discussed hereinabove. Admittedly there was no enmity between the appellants and the complainant party. It has come on record that the matter started on a trivial matter of picking berries which resulted in a quarrel between the parties. It can be safely concluded from the prosecution version that appellant Ashraf is responsible for inflicting injury on the person of the deceased. However, as far as quantum of sentence is concerned same shall be considered at a latter stage. Nothing has been brought on record that the witnesses being interested had falsely implicated the appellants. The presence of the appellants at the place of incident has been fully established and the witnesses have corroborated each other on material points. They were cross-examined at length but they stood firm as to how the fight started and injury was inflicted, by Ashraf to the deceased. It has been time and again observed by the superior Courts that mere relationship of witness with the deceased would not make him an interested witness, if otherwise the presence of witness is proved and his credibility could not be shaken, and his version appears to be confidence-inspiring and satisfies the conscience of the Court.
25. Mr. Ehsanul Haq, Advocate for the appellant vehemently argued that provisions of sections 147/149, P.P.C. Are not applicable in the instant case; therefore, the learned Additional Sessions Judge, Panjgoor has erred in convicting the appellants for the said offences. As observed above, the incident took place after Maghrib prayers, and P.W.1 Ghulam Mustafa deposed that he was informed by his house mates that his son was beaten by Ikram and Ashraf; he complained to Haji Dur Muhammad, who showed his displeasure and became angry and Bahar who was also present exchanged hot words, asked other appellants to attack him. From the prosecution's own version, there is nothing to infer that the appellants had formed an unlawful assembly and from the case set up by the prosecution, it can be safely held that the provisions of sections 147/149, P.P.C. Are not applicable. The matter flared up on the spur of the moment and Izzatullah who sustained knife injury lost his life in the said occurrence. As observed hereinabove, it was P.W.1 Ghulam Mustafa who was the target but he did not receive any injury and it was deceased Izzatullah who sustained knife injury at the hands of the appellant Ashraf. It may further be pointed out that all the witnesses have deposed that Izzatullah was injured by Ashraf but they have not deposed as to how he intervened and how the incident took place. Thus the prosecution version itself shows that provisions of sections 147/149, P.P.C. Are not attracted in the instant case.
26. Therefore, in view of the above, discussion in such a situation every individual would be responsible for his own act. In this regard reference is made to Shahabuddin v. The State (PLD 1964 SC 177). The learned counsel for the appellant and the learned State Counsel could not support the portion of the impugned judgment to the extent of conviction of the appellants under sections 147/149, P.P.C. Though Mr. Amir Raza Naqvi, Advocate for the complainant attempted to argue that all the appellants had gathered there but he could not substantiate his argument with any cogent reasons.
27. Now coming to the next contention of Mr. Ehsanul Haq, Advocate for the appellants that conviction of appellants Akram, Bahar, Muhammad Raflq and oil Jan under section 324, P.P.C. Is also illegal and without any basis. As observed hereinabove that since P.W.1 Ghulam Mustafa was the target of the appellants but admittedly he and other eye-witnesses present at the place of incident have not received any injury. Even P.W.1 Ghulam Mustafa has not stated that appellants attempted to injure him. It has only come on record that when the fight started, Izzatullah received injury and thereafter the appellants left for their houses. It has also been alleged that at that time of incident, appellant Bahar was armed with a pistol but admittedly he has not used the same nor any attempt was made by him. The learned trial Court has over read the prosecution evidence for convicting the appellants under section 324, P.P.C. It may further be pointed out that even charge was not framed under section 324, P.P.C. And none from the complainant's side received any injury except the injury inflicted upon the deceased. It may be observed that it is not even the prosecution case that any attempt to murder was made by the appellants upon any of the complainants. As the provision of sections 147/149, P.P.C. Have been overruled, hence each of the appellant being liable for his individual act. Thus looking at the prosecution case in the light of the above context no specific role has been attributed to any of the appellants and in absence of common intention, all of them cannot be held responsible jointly except for their individual acts. Mr. Amir Raza, Advocate for the complainant and learned A.A.-G. Could not give any cogent reason regarding furtherance of common intention of the appellants. Though they opposed the appeal and argued that all the appellants are responsible for the commission of the offence but when confronted with the situation that the incident took place at the spur of the moment, neither the appellants nor the complainant party had come with any intention to fight, learned counsel could not give any satisfactory reply. Thus in our considered opinion, the conviction of appellants Akram, Dil Jan, Muhammad Rafiq and Bahar under sections 324/147/149, P.P.C. Being illegal and unwarranted by law is set aside. Further conviction of Bahar under section 302, P.P.C. Is also illegal as there is nothing on record to show that he played any role regarding murder of deceased Izzatullah. As already held that all the appellants are liable for their individual acts. Though it is alleged that at the time of incident Bahar was armed with pistol but admittedly he has not used the same nor any overt act has been attributed to him except a Lalkara; hence his sentence under section 302, P.P.C. Is also set aside.
28. Now coming to the quantum of sentence of appellant Ashraf, Mr. Ehsanul Haq, Advocate for the appellants argued in alternative that since appellant Ashraf had no intention of killing Izzatullah and as to how he received the injury, no details have been given by the prosecution witnesses. The learned counsel contended that the case of the appellant falls under Qatl-Bis-Sabab defined under section 321, P.P.C. We are not inclined to accept the said contention of the learned counsel. It has come on record that the injury was inflicted by appellant Ashraf on the vital part of the deceased, through he may not be having any intention to commit the murder but had knowledge that the injury inflicted by him was likely to cause death of the deceased. In our considered thought the case of the appellant falls within the ambit of section 302(b), P.P.C.; hence the conviction of the appellant is altered to section 302(b), P.P.C. Thus, the appellant is sentenced to undergo life imprisonment which will meet the ends of justice. The appellant is also fined R.1,00,000 under section 544-A, Cr.P.C.; in default to further undergo R.I. For one year. If the fine is recovered, Rs,50,000 be paid to the heirs of deceased Izzatullah.
29. With the above modification in the sentence of appellant Ashraf, appeal to his extent is dismissed. He shall be entitled to benefit of section 382-B, Cr.P.C. However, the appeal of appellants Muhammad Rafiq, Akram, Dil Jan and Bahar is accepted, they are acquitted of the charge. They be released forthwith if not required in any other case. Murder Reference is answered accordingly in negative.