P L D 1983 Lahore 510 (PLP)

Muhammad Ramzan (45 years), his brother Muhammad Rafiq (35 years) and their cousin Muhammad Shafiq (25 years) were tried under sections 302/34, 307/34 and 323/34, P. P. C. by the Additional Sessions Judge, Faisalabad for the murder of Abdul Haq and for inflicting injuries to Muhammad Afzal and Muhammad Munir. The Additional Sessions Judge vide his judgment dated 22-1-1981 convicted Muhammad Ramzan under section 302, P. P. C. and sentenced him to life imprisonment and a fine of Rs. 2,000, and in default to undergo further rigorous imprisonment for six months. He also convicted Muhammad Ramzan, Muhammad Rafiq and Muhammad Shafiq under section 323/34, P. P. C. for causing simple injuries to Muhammad Afzal and sentenced them to suffer R. I. for a period of six months each. He further convicted and sentenced them for three months' R. 1. each for causing injuries to Munir Ahmad. The sentences were, however, ordered to run concurrently. Muhammad Ramzan has come up in appeal.

2. Briefly the facts of the case are that on 10-9-1977 at about 9-00 a. m. the womenfolk of Muhammad Ramzan i. e. his wife and mother quarrelled with the wife and mother of Muhammad Afzal, complainant and exchanged abuses. Muhammad Ramzan also abused and pushed the mother and wife of Muhammad Afzal out of his house. Later on, being informed by his wife Mst. Salam Parveen, Muhammad Afzal along with Abdul Haq deceased went to complain to the mother of Muhammad Ramzan, but she and of Muhammad Ramzan's wife started abusing them. Muhammad Afzal and Abdul Haq abused them in retaliation and pushed them. So Muhammad Ramzan had a grudge against the complainant party. Thereafter in order to avenge the insult Muhammad Ramzan alongwith Muhammad Rafique and Muhammad Shafique came out in the lane and gave Lalkara that they will avenge the insult. They started abusing the .complainant party. All the three were armed with Lathis and while raising Lalkara they assaulted the complainant pary. Muhammad Ramzan inflicted Lathi blow to Abdul Haq, which hit him on the head and he fell down. Muhammad Rafique inflicted injuries to Muhammad Afzal on the head: Muhammad Munir and Muhammad Boota were attracted by the alarm and reached the spot. Muhammad Munir tried to rescue Muhammad Afzal, but Muhammad Shafique caused a Lathi blow on his head. Thereafter Muhammad Rafique and Muhammad Shafique inflicted further Lathi blows. to Muhammad Afzal and Muhammad Munir. Muhammad Boota intervened and rescued them. The accused' went away. Abdul Haq became unconscious. While Abdul Haq was having being carried to Jaranwala, he expired on the way. Afterwards, Muhammad Afzal went to Police Station, Jaranwala and made report Exh. P. K. to S. I. Muhammad Ibrahim Khan on 11-9-1977 at 2-00 a. m. the same night. The police station is at a distance of 15 miles from the place of occurrence. After registration of the case, the A. S. I. went to the place of occurrence and sent the dead body of Abdul Haq for post-mortem examination to the Hospital.

3. P. W. 1 Dr. Khurahid Ahmad held his autopsy the dead body of Abdul Haq and found the following injury of blunt weapon : "Contused swelling 3" x 2" on right side of head 3" above right pinna. " The Doctor found a depressed fracture of right temporal bone under this injury. A big clot of blood, was observed inside the skull cavity. The brain had been compressed. In his opinion, injury No. 1 was sufficient to cause death in the ordinary course of nature and the cause of death was shock and compression of this brain. The Doctor also examined the witnesses. On the person of Muhammad Munir, be found the following simple injuries caused by a blunt weapon : (1) A lacerated wound 1 ?? ? x 1/3? " x scalp deep on top of head left side. (2) A contusion 3? x 1" on left upper arm. The duration of the injuries was about 24 hours.. The same day at 4-45 p. m; the Doctor examined Muhammad Afzal and found the following simple injuries caused by blunt weapon on them. (1) A lacerated wound 1 ?? x ?? x scalp deep on right side of head. (2) A lacerated wound ?? x ? " x skin deep on left side of head. (3) A lacerated wound 1/3? x l/4? x skin deep on right side of head. (4) An abrasion ?? x ?? on back of right elbow joint. (5) An abrasion ? " x ? " on back of right elbow joint. (6) An abrasion ? "X 1/3' on inner side of left forearm. (7) A contusion 2" x 2' on left side of chest on its upper part. (8) An abrasion 1/3" X 1/3" on outer side, right lumber area. The duration of injuries was about 24 hours.

4. P. W. 8 Muhammad Ibrahim A. S. I. arrested the accused on 11-9-1977. Ramzan led to the recovery of Lathi Exh. P. 2 which was taken into possession vide Memo. Exh. P. G. Similarly Rafique and Shafique produced Lathis Exh. P. 3 and Exh. P. 4 which were taken into possession vide Memos. P. H. and P. J. respectively. The A. S. 1. prepared the injury statement Exh. P. L. and inquest report Exh. P. M. He also prepared the injury statement (Exh. P. Q.) of Muhammad Ramzan, appellant and sent him to the Doctor for medical examination.

5. P. W. 1, Dr. Khurshid Abmad Khan, examined Muhammad Ramzan accused on 12-9-1977, and found the following two injuries : (1) A contused abrasion ? " x ?? " on mid line of head., (2) A contusion 2 " x I" on back of right wrist joint. Both the injuries were simple caused by blunt weapon. The duration of the injuries was about two days.

6. After completing the investigation the accused were sent up for trial. They denied guilt and ascribed the case to .enmity. Muhammad Ramzan appellant while explaining the case against him, made the following statement : "I am. innocent. On 10-9-1977, at noon time, there was a quarrel between me and my aunt Mst. Bani wife of Muhammad Alam, over the construction of the intervening. well of ' our respective houses. Mst. Gulian, sister of Afzal P. W. and his wife Mst. Salaman and his montber Mst. Rashidan sided with my aunt and started abusing me which annoyed me and then I pushed them out of my house and also injured Mst. Saleema and Mst. Rashidan. At about 6-00 p. m. the same day I went to the street for calling Mst. Niamat Bibi to help the delivery case of my wife and when I was returning to my house from the house of Mst. Niamate, Afzal, Abdul Haq and Munir while armed with Dangs assaulted me near my house. I raised an alarm after having fallen to the ground which attracted Rafique and Shafique to the spot who rescued me by giving some blows to the assailants. Abdul Haq fell upon a log of wood in front of his house. My wife Mst. Allah Rakhi gave birth to a son after the occurrence the same day." Rafique and Shafique accused supported his statement. No accused led evidence in the case.

7. Relying on the prosecution evidence, the trial Court found Muhammad Ramzan appellant guilty of the murder. However, it came to the conclusion that since Muhammad Rafique and Muhammad Shafique did not inflict any injury to Abdul Haq, therefore, section 34, P. P. C. was not invoked. Thus, .they were only convicted for causing injuries to the witnesses.

8. The learned counsel for the appellant contended that since Muhammad Ramzan had insulted Mst. Gullan, Mst. Saleema and Mst. Rashidan, therefore, the motive was with the complainant party. Further contended that the statement of the accused that his wife was in the family way and he had gone to fetch Mst. Niamate, a midwife was supported by the admission of P. W. 5 Mst. Saleema wife of P. W. Afzal that Ramzan's wife gave birth to a son the same night. 9. 1 have considered the matter. Muhammad Ramzan has not denied his presence at the spot. Therefore, the sole question for determination will be whether he was attacked by the complainant party and his co-accused acted in his defence and whether Abdul Haq received the fatal injury by a fall. The later part of his statement that Abdul Haq suffered the fatal injury by a fall was a highly improbable story. On the other hand, it is quite clear that both parties were armed with blunt weapons. This is borne out by the medical evidence. Prosecution witnesses have concealed the injuries suffered by Muhammad Ramzan. It thus follows that both sides have exaggerated. This is further supported by the contradiction in the statement of P. W. 6 Muhammad Afzal informant and his wife P. W. 5 Mst. Salma Perveen. According to her, the main occurrence, in which, Abdul Haq suffered fatal injury took place at 1-00 p. m. when her husband, who was a school master came home and was informed by her about the insult offered to her in the morning by Ramzan. Bit according to Afzal, when he returned home, his wife told him that Ramzan had insulted her in the morning. On hearing this, he went to the house of Ramzan to lodge a protest, but he was not there. He protested to his wife and mother, who abused him and he alongwith Abdul Haq quarrelled with them and pushed them both. Further according to him, to avenge this insult, the accused appeared at his house in the evening at 6-00 p. m. and the main occurrence took place then. This discrepancy about the timing of the main occurrence in the statements of Muhammad Afzal and his wife to my mind explains away the whole case. It appears that the prosecution story as given by Mst. Salma Perveen P. W.-,5; wife of the informant was nearer truth. Very likely a sudden fight ensued on the protest of Muhammad Afzal, in which, both sides were injured. Parties lived in the same lane and their houses were almost opposite to each other. Under the circumstances of this case, there was thus no question of a premeditated attack. In assessing the evidence trial Court erred in holding that when Abdul Haq was abusing Muhammad Ramzan, it did not mean that he was fighting with him. It, therefore, did not give the benefit of Exception IV to section 300, P. P. C. to. the accused. It may . be mentioned here that in the explanation to Exception 4, it is enacted in clear terms that "it is immaterial in such cases, which party offers the provocation or commits the first assault". The whole incident was undoubtedly without premeditation in the heat of passion upon a sudden quarrel. Since both sides were armed and Abdul Haq received solitary fatal injury, it cannot, therefore, be said that the appellant too under advantage or acted in a cruel and unusual manner. I, therefore, alter his conviction from 302 to 304, Part I, P. P. C. As to sentence, Muhammad Ramzan remained in custody before his trial for over two years and thereafter, served a period of two years and five months after his conviction. Taking the two periods of his detention into consideration, I sentence him to a period of imprisonment already undergone by him, which 8, to my mind would meet the ends of justice in this case.. In addition, he i4 fined Rs. 3,000 in default of payment of fine, he shall suffer one year rigorous imprisonment. The fine, if realised, shall be paid to the heirs of the deceased.

10. In so far as his conviction on the two counts under section 323, P. P. C. for causing injuries to Muhammad Afzal and Muhammad Munir was concerned, neither P. W. 6 Muhammad Afzal nor P. W. 7 Muhammad Munir attributed their injuries to Ramzan. I, therefore, acquit him. His conviction and sentence on these two counts are set aside.