1. ' BASHIR A. MUJAHID, J.---Rizwan alias Billu son of Liaqat, Naseer Ahmad son of Ghulam Rasool and Muhammad Imran son of Abdul Ghani have challenged judgment dated 25-11-1997 passed by learned Additional Sessions Judge, Sargodha whereby they were convicted under section 302(b), P.P.C. For commission of murder of Adnan alias Tipu and Rizwan alias Billu was sentenced to death while Naseer and Muhammad Imran were sentenced to imprisonment for life each. Naseer Ahmad and Muhammad Imran were further convicted under section 337-A(i), P.P.C. And sentenced to two years, R.I. Each as a Tazir and to pay Daman of Rs,5,000 each. Through the same judgment, Saqib Iqbal and Aftab Ahmad were acquitted of the charge.
2. ' The brief facts of the prosecution case are that F.I.R. No,168 (Exh.P.F) was registered at Police Station Saddar, Sargodha on 2-11-1995 at 6-20 p.m. On the statement of Maqsood Ahmad P.W.7 with Sh. Ameer Masood P.W.13 about the occurrence took place at 5-00 p.m. On the same day i.e 2- 11-1995 in Middle School of Chak No,98/North at a distance of 12 k.m. From the police station, wherein it was alleged that the complainant was resident of Chak No,98/North and was cultivator.
3. About two months before the said occurrence Adnan alias Tipu son of the complainant was forbidden by Saqib son of Iqbal, Imran son of Abdul Ghani and Naseer Ahmad son of Ghulam Rasool from playing cricket in the school ground, on which some altercation took place between them, but due to intervention of Mushtaq Ahmad son of Barkat Ali and other respectable of the village, the matter was compromised. On the day of occurrence at 5-00 p.m. The complainant was present near Government Middle School and his son Adnan alias Tipu, Asif Rasool son of Ghulam Rasool were playing cricket with small children in the School Cricket Ground, when Rizwan alias Billu resident of Sambarial who is maternal nephew of Iqbal and had come as a guest to his house for about 5/6 days before, Saqib son of Iqbal Ahmad armed with dagger, Aftab Amjad, Imran sons of Abdul Ghani, Naseer Ahmad son of Ghulam Rasool armed with Sotas came on FIAT Tractor in the ground and started plugging the ground with tractor. Adnan and Asif Rasool desisted which resulted into altercation between them. Aftab Amjad accused raised Lalkara to the effect that Adnan and Asif Rasool be caught hold and fmished. On which Saqib gave a dagger blow hitting on right side of Adnan, Rizwan alias Billu gave two dagger blows at the chest of Adnan. Saqib gave two dagger blows hitting on left knee and ring finger of Adnan. Aftab Ahmad gave Sota blow on head of Asif, Naseer Ahmad gave Sota blow hitting right and left shoulder of Asif. Imran gave three Sota blows to Asif Rasool. On hue and cry raised by the complainant Ghulam Rasool and Muhammad Iqbal also attracted to the spot and they witnessed the occurrence. The 'accused fled away from the spot. The complainant and P.Ws. Removed the injured to the Civil Hospital Sargodha. Adnan succumbed to the injuries on the way to the Hospital while Asif Rasool was got admitted, who was medically examined and Maqsood Ahmad got the instant case registered.
4. ' Aamer Masood, Inspector/S.H.O. P. W.13 after registration of the case arrived at the Civil Hospital Sargodha and took the dead body of Adnan into possession and prepared his injury statement through memo. Exh.P.G. And inquest report Exh.P.H. And entrusted the dead body to Pervaiz Iqbal, F.C. For post-mortem examination. He recorded the statements of Ghulam Rasool and Mushtaq Ahmad and Imran Mehmood P.Ws. In the Hospital. He also inquired from the doctor if Asif Rasool was fit to make the statement and after receiving the reply in positive he also recorded the statement of Asif Rasool in the hospital. Thereafter, he arrived at the place of occurrence but on the next day i,e, 3-11-1995 he was transferred from the police station and investigation of the case was entrusted to Maula Bakhsh S.I/S.H.O. P.W.14, who on the same day arrived at the spot and took the blood-stained earth through memo. Exh.P.L and FIAT Tractor No,4815-KS from the house of Aftab Amjad through memo. He also took into possession last worn clothes of deceased produced before him by Pervez Iqbal, F.C. Through memo. Exh.P.N. On 6-11-1995, he got prepared the site plan through Muhammad Saleem, Draftsman P.W.1. On 12-11-1995, he arrested Imran, Naseer and Rizwan accused and on 13-11-1995 he arrested Saqib Iqbal and Aftab Amjad. On 18-11-1995 Rizwan accused while in police custody led to the recovery of blood-stained dagger P.4 which was taken into possession through memo. Exh.P.B. Naseer Ahmad while in police custody on the same day led to the recovery of Sota which was taken into possession through memo. Exh.P.C. On the same day, Imran accused led to the recovery of Sota P.6 which was taken into possession through memo.
5. Exh.PT. He recorded the statements of the P.Ws. Under section 161, Cr.P.C. And investigation was transferred to Muhammad Safdar Wahla D.S.P/C.W.1 and thereafter to Ghulam Jillani, Inspector C.W.2. After completion of the investigation, report under section 173, Cr.P.C. Was submitted by placing Saqib Iqbal and Amjad in Column No,2.
6. ' The trial Court framed the charge which was denied by the accused and they claimed trial.
7. ' During the trial, the prosecution examination as many as 14 witnesses to prove the guilt of the accused.
8. ' The medical evidence was furnished by Dr. Muhammad Afzal P.W.9, who on 3-11-1995 at 10-20 a.m.
9. Conducted the postmortem examination on the 'dead body of Adnan alias Tipu and found the following injuries on his person:-
1. An incised wound 1 x 1/2 c.m. On outer and front of left knee joint. 'The injury was bone deep.
2. An incised wound 3 x 1/2 c.m. x bone deep on the dorsal aspect of terminal part of left ring finger.
3. An incised wound 11/2 x 1 c.m. x muscle deep on right front of chest 6 c.m. From midline, 3 c.m.
10. Medial and below to right nipple.
4. An incised wound 11/2 x 3/4 c.m. On right chest middle part 4 c.m. Lateral to injury No,3,5 c.m.
11. Below to right nipple. This injury was muscle deep. On dissection under injuries Nos.3 and 4 it did not penetrate the chest cavity.
5. An incised wound 4 x 2 c.m. On outer side of right middle abdomen 8 c.m. Above right interior superior iliac apine, 4 c.m. Below to right costal margin.
12. ' In his opinion death was caused due to injury No,5 while the other injuries had added effect. The injuries were sufficient to cause death in ordinary course of nature. The time between injuries and death was 11/2 hours and between death and post-morteth examination was 16 hours.
13. ' On the same day he also medically examined Imran Ahmad and found the following injuries on his person:-
(1) A swA ling 10 x 6 c.m. On the back and upper 1/3 of right for arm. Complaint of pain (severe) in it.
(2) A lacerated wound 11/2 x 1/2 c.m. x muscle deep on the left side of head, 9 c.m. Above left ear.
(3) An abrasion 1/2 x 'A c.m. On the inner aspect of left index finger, terminal part.
14. ' The ocular account was furnished by Maqsood Ahmad P.W.7 who was complainant of the case. He supported the version of the F.I.R. And narrated the prosecution story as an eye-witness of the occurrence. Asif Rasool was examined as P.W.8. He supported the prosecution story as an injured witness. He was medically examined on the same day by Dr. Zulfiqar Ali P.W.11. He supported the prosecution story as narrated by the complainant P.W.7. According to him, all the accused nominated by the complainant arrived in the ground and started ploughing, Adnan deceased and he asked the accused to desist, on which, they stopped the tractor and attacked on him. Tariq Mehmood P.W.5 had identified the dead body at -- the time of post-mortem examination. Muzaffar Ahmad P.W.6 had attested the recovery memo. Exh.P.B where Rizwan accused had led to the recovery of blood-stained dagger P.4 and recovery memo. Exh.P.0 whereby Naseer Ahmad accused got recovered Sota P.5 and Exh.P.D whereby Imran accused led to the recovery of Sota P.6.
15. Mushtaq Ahmad P.W.10 was the witness of the earlier occurrence which allegedly took place two months before the present one, who stated that there was abuses and exchange of hot words between Adnan deceased on one side and the accused Saqib, Imran, Aftab on the other side. He separated them and effected the compromise between the parties. He further stated that on 2-11- 1995 at 5-15 p.m. He had informed Maqsood Ahmad complainant about the incident in Civil Hospital Sargodha. He also attested the recovery memo. Exh.P.I whereby on 3-11-1995 Tractor bearing No,4815/KS was taken into possession by the Investigating Officer. The' Court also examined Muhammad Safdar Wahla, D.S.P. As C.W.1 and Ghulam Jillani as C.W.2 as they had also investigated the case on. The application moved by the complainant. The remaining witnesses are of formal nature and need not to be discussed.
16. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.0 and that Serologist Exh . P. Q and Exit . P.R.
17. ' The statements of the accused were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement. Rizwan appellant in reply to Question No,11 as to why the case against him and the P.Ws. Deposed against him, he replied that the deceased was the aggressor who opened the attack by firing with pistol.
18. ' The trial culminated into conviction of the appellants as mentioned above.
19. ' Rizwan Ahmad, Muhammad Imran and Naseer Ahmad have filed Criminal Appeal No, 684 of 1997 against their conviction and sentence while the complainant has filed Criminal Appeal No,770 of 1997 against acquittal of Saqib Iqbal and Asif Amjad. The trial Court has sent up Murder Reference No,309 of 1997. All the matters are outcome of the same judgment, therefore, are being decided by this single judgment.
20. ' Learned counsel for the appellants has argued that there was no previous motive for the occurrence. The accused came on Tractor to plough the ground, which was desisted by the deceased, on which, the occurrence took place at the spur of the moment, therefore, it is not a case of premeditated or pre-planned murder. It is a case of self-defence as according to the defence plea Adnan caused fire shots at accused party which, hit the tractor and the appellants caused simple injuries in exercise of their right of self-defence and the conviction recorded against the appellants is not legal and the sentence is too harsh.
21. ' Conversely, the appeal has been opposed by the learned counsel for the complainant and for the State. Learned counsel for the complainant by placing reliance on 1996 SCM R 908 and 1973 SCM R 219 has argued that all the accused were members of the unlawful assembly and they are vicariously liable for murder of Adnan and causing injuries to Asif Rasool P.W.8 and the acquittal of Saqib Iqbal and Amjad Aftab on the basis of opinion of the .Investigating Officers is not legal, therefore, it has been prayed that they be also convicted.
22. ' Heard. Record perused.
23. ' The occurrence took place at about 5-00 p.m. Adnan deceased and Asif Rasool P.W.8 in injured condition were removed to the hospital. Adnan succumbed to the injuries on the way to hospital while Asif Rasool P.W.8 was admitted in Civil Hospital, Sargodha where he was medically examined at 6-00 p.m. By Dr. Zulfiqar Ali P.W.11. The F.I.R. Was lodged at the police station at 6-20 by producing the M.L.R. Of Asif Rasool, therefore, the appellants were nominated in the promptly recorded F.I.R. It was a daylight occurrence. The occurrence has also been admitted by the appellants. The prosecution case was that an altercation had taken place between deceased Adnan and accused party two months prior to present occurrence but was compromised through Mushtaq Ahmad P.W.10 and the other respectable. No such unpleasant incident took place in two months period which shows that there was no previous grudge to take revenge of earlier incident and incident took place at the spur of the moment. According to the complainant Maqsood Ahmad P.W.7 and Asif Rasool P.W.8 (injured), Adnan (deceased) and Asif Rasool were playing cricket with the other boys in the school ground when the accused arrived there with Tractor and started ploughing the ground. They were stopped by the deceased, on which attack was launched. Had the deceased not forbidden or stopped the accused the occurrence could have been avoided, therefore, we are convinced that it was not pre-planned or premeditated murder. The incident took place at the spur of the moment after some altercation/exchange of hot words, between the parties. Rizwan alias Billu has been attributed dagger blows to the deceased. It is correct that according to the post- mortem examination injury No,5, has not been attributed to him, which was declared grievous but according to the statement of Dr. Muhammad Afzal P.W.9, all the injuries caused death. During the investigation it was found that only Rizwan was responsible for causing injuries to the deceased and he also led to the recovery of blood-stained dagger P.4. The defence plea that Adnan deceased fired at the accused from pistol is not correct and appeal to common sense. No mark of fire was found on the tractor. The pistol or the empty were also not taken into possession from the spot. The prosecution case has been proved by the statements of Maqsood Ahmad P.W.7 and Asif Rasool P.W.8 corroborated by medical evidence and the recovery of dagger from Rizwan alias Billu, therefore, Rizwan alias Billu has been rightly found guilty under section 302(b), P.P.C. For causing death of Adnan alias Tipu. His conviction as such is maintained.
24. ' As far as sentence is concerned, there was no previous enmity or motive to Rizwan for causing death of Adnan and it was not an intentional murder. No incident took place between the present occurrence and the altercation allegedly took place between the deceased and the accused party two months ago in which Rizwan admittedly was not a party. He has come in the village as a 'guest' only few days ago. Whether the accused started ploughing the ground under the order of some school authorities or on their own, has not been brought on record, but this is a fact that the fight took place on playing of cricket between young boys and it was not premeditated intentional murder, therefore, these are the mitigating circumstances for awarding lesser penalty to Rizwan.
25. Accordingly, while maintaining the conviction under section 302(b), P.P.C., we alter his sentence to imprisonment for life, which will meet the ends of justice. Benefit of section 382-B, Cr.P.C. Will also be available to him. Rizwan accused is also ordered to pay compensation of Rs,50,000 to the legal heirs of deceased under section 544-A, Cr.P.C., in default thereof to undergo six months' S. I .
26. The case of Naseer and Imran is distinguishable than Rizwan. They have not been attributed any injury to the deceased. They caused simple injury to Asif Rasool P. W.8 with sticks when he intervened in the fight, therefore, they cannot be held vicariously responsible for causing death of Adnan and their conviction under section 302(b), P.P.C. Is not legal and the same is set aside.
27. However, their conviction under section 337-A, P.P.C. Is maintained and the imposition of Daman is also maintained.
28. ' Regarding the appeal filed by, the complainant against acquittal of Amjad Aftab and *lib Iqbal, it was their plea from the very first day that they have never participated in the occurrence. They were declared innocent in all the investigations and were placed in Column No,2. It was found that although they were present at the spot but they never participated in the occurrence. They were summoned by the trial Court to face the trial. We agree with learned counsel for the complainant that the opinion of the Investigating Officer is not binding on the Court, but in the ,instant case none of the children who were playing cricket with the deceased were examined during the investigation. The Investigating Officer associated all the inhabitants of the locality in the investigation who supported their innocence. The cogent reasons were given by all the police office-s to declare them innocent. The investigation was transferred time and again on the application of the complainant. They have earned their acquittal after facing protracted trial.
29. Double presumption of innocence has been attached in their favour. The Courts are very slow to interfere in the judgment of acquittal where the judgment is based on misreading or misappreciation of evidence, but we do not find any perversity of the reasons by extending benefit of doubt in their favour' by the trial Court, therefore, Criminal Appeal No,770 of 1997 is dismissed having no force.
30. ' Criminal Appeal No,684 of 1997 is dismissed with the above modification. Death sentence of Rizwan is not confirmed.
31. ' Murder Reference is answered in the negative.