1994 PLP 1717 (MLD)

Subah Sadiq son of Muhammad Ramzan aged 25 years, Wazir son of Ishaque Wattoo aged 26 years, Wazir son of Ahmad Din aged 22 years, Munir son of Ahmad Din aged 18 years and Muhammad Amir son of Ahmad Din aged 22 years, were tried by the learned Additional Sessions Judge, Bahawalnagar, who vide his impugned judgment dated 29-1-1987 convicted and sentenced Subah Sadiq, Wazir son of Ishaque, Wazir son of Ahmad Din, Amir and Munir sons of Ahmad Din under section 148, P.P.C. to undergo one year R.I. each alongwith a fine of Rs.500 each, in default whereof each shall further suffer three months' R.I. All the appellants were also convicted under section 302/149, P.P.C. and sentenced to imprisonment for life alongwith a fine of Rs.5,00o each, in default whereof to further undergo one year R.I. each. The sine, if realized, was directed to be paid to the legal heirs of the deceased to the extent of one-half. They were further convicted under section 324/149, P.P.C. four counts for causing injuries to the P.Ws., and were sentenced to two years' R.I each on each count alongwith a fine of Rs.2,000 each on each count, and in case of default in its payment each was directed to further undergo R.I. for sue months one each count. The fine, if recovered, one-half of it was directed to be paid to the injured P.Ws. Muhammad Aslam complainant, Sakhi Muhammad, Mst. Sughran Bibi and Muhammad Arif. They were extended the benefit of section 382-B, Cr.P.C. The sentences were directed run concurrently. The appellants have assailed the impugned judgment by of this criminal appeal.

2. Appellant Wazir son of Ishaque has since died and the proceeding against him are abated.

3. The prosecution case in brief as unfolded in the F.I.R. Exh.PJ lodgej by P.W.7 Muhammad Aslam recorded by Muhammad Hussain, S.H.O./Sy (P.W.10) at Police Station Mandi Sadiq Ganj, District Bahawalnagar, is to the effect that he was resident of Mauza Neelianwali and was a cultivator. Durint the last elections he had voted for Gadoka, whereas Wazir Jammun had voted for Kaluka party and the accused Subah Sadiq etc. sided with Wazir Jammu''; and they used to be ready to quarrel with them on trifle matters. On the day at occurrence at Peshiwela Subah Sadiq and Wazir son of Ahmad Din appellants were sitting in front of house of the complainant in the street and were pla obscene songs on tape-recorder. The complainant Muhammad Aslam (P.W,i alongwith Yasin (P.W.9), his paternal cousin restrained Subah Sadiq and Waais son of Ahmad Din appellants, on which they exchanged hot words. P.W, Muhammad Aslam complainant and P.W.9 Yasin insulted them. At about 431 p.m. when the complainant alongwith others was sitting in their hous appellants Subah Sadiq armed with Dang, Wazir son of Ishaque armed with hatchet, Wazir son of Ahmad Din armed with Dang, Munir son of Ahmad Da armed with Dang, Amir son of Ahmad Din armed with Dang and co-accused Wazir son of Waryam Jammu (discharged by the police during investigation empty-handed, after making mutual consultation reached. Wazir son d Waryam raised Lalkara that they would teach them a lesson for insult. The complainant P.W.7 Muhammad Aslam alongwith his deceased fathet Muhammad Din, P.W.8 Sakhi Muhammad maternal cousin and P.W.6 Msf Sughran Bibi, paternal cousin reached the street. On the Lalkara of Wad Jammu that none should be spared, Wazir son of Ahmed Din appellad inflicted Soti blows on the right shoulder and on the right wrist of the complainant. Muhammad Din deceased came running and Subah Sa appellant inflicted Dang blow on his head. Wazir son of Ahmad Din inflicted Dang blow on the head of father of the deceased and Wazir son of Ishaque appellant inflicted hatchet blow with the wrong side on the temponl region of the deceased. The deceased fell down, and while falling he was gives Dang blow by Subah Sadiq on his right knee. P.W.8 Sakhi Muharnm0i intervened, on which .Wazir son of Ishaque appellant inflicted hatchet blow his head from the wrong side, and Amir son of Ahmad Din appellant ga: Dang blow on the head of P.W.8 Sakhi Muhammad and Munir son of Ahnl Din extended stick blow on the right wrist of Sakhi Muhammad, who fell down' P.W.6 Mst. Sughran Bibi reached running and Munir son of Ahmad appellant inflicted Soti blow on her head. Arif tried to intervene when Subah? Sadiq inflicted Soti blow on his head and then again on his shoulder. On commotion P.W.9 Yasin and one Muhammad Usman P.W.(given up) reached the spot, who beseeched the accused/appellants and rescued them. Muhammad Din succumbed to his injuries at the spot. 4, The appellants were challaned and sent up for trial. Charge under sections 148, 302/149, 307/149, 307/149, 307/149 and 307/149, P.P.C. was framed, to which they denied and claimed trial.

5. P.W.10 Muhammad Hussain S.I./S.H.O. recorded the F.I.R. Exh.PJ, reached the spot, inspected the locale, prepared injury statement Exh.PB, inquest report Exh.PC of deceased Muhammad Din, secured blood-stained earth vide memo. Exh.PO and made the same into sealed parcel. He also prepared injury statement of Muhammad Aslam complainant (P.W.7) Exh.PE/1 of Sakhi Muhammad (P.W.8). Exh.PE, of Muhammad Arif P.W. (given up) Exh.PG/1 and that of P.W.6 Mst. Sughran Exh.PH/1. He recorded the statements of the P.Ws. and despatched the dead body to the mortuary. He searched for the accused and on 4-8-1985 arrested all of them. Wazir son of Ishaq on 6-8-1985 in police custody led to the recovery of blood-stained hatchet P.3 from his residential Kotha which he secured vide memo, Exh.PK. Wazir son of Ahmad Din appellant on the same day led to the recovery of blood-stained Lathi P.6 from his Kotha which he secured vide memo. Exh.PN. On the same day Muhammad Amir son of Ahmad Din led to the recovery of blood-stained Sota P.4 from his residential Ihata, which he secured vide Exh.PL. Muhammad Munir son of Ahmad Din on the same day led to the recovery of blood-stained Dang P.5 from the Kotha, secured vide memo. Exh.PM. He secured the above articles in presence of the witnesses and attested by them. He delivered the parcels to the Moharrir and after completion of the investigation challaned the appellants.

6. P.W.4 Dr. Noor Khan Tareen on 30-7-1985 at 8-00 a.m. conducted autopsy on the dead body of deceased Muhammad Din and found the following injuries on his person:-- (1) A contusion mark 7 x 2.5 c.m. on the right side of the head 4 c.m. above the right pinna of the ear, starting from the occipital region to the parietal region. There was also swelling but no dipping. (2) An incised wound 7 x 2.5 c.m. x 1.5 c.m. horizontal in direction. Wound was touching the bone underlying bone was fractured. Wound was somewhat on the lateral side of the head 8 c.m. above the left pinna of the ear. (3) Swelling 7.5 c.m. x 5 c.m. on the lateral side of the head in the temporal region on the left ear. (4) A swelling 6 x 4 c.m. on the medial side of the right knee joint. In his opinion, the death occurred due to head injuries collectively caused by injuries Nos.1, 2 and 3, which were sufficient to cause death in the ordinary course of nature. Injuries Nos.1, 2 and 3 were also fatal individually. Injury No.4 was simple in nature. All the injuries were anti-mortem and were caused by blunt weapon except injury No.2 which was caused by sharp-edged weapon. Probable time that elapsed between injuries and death was 5 to 15 minutes and between death and post-mortem 12 to 18 hours. On the same day he medically examined P.W.7 Muhammad Aslant and found the following injuries on his person:

(1) An abrasion mark 3 x 1 c.m. on the back of right shoulder. (2) Swelling 5 x 5 c.m. on the back of head about 10 c.m. above the right pinna of the ear. (3) An abrasion mark 3 x 1 c.m. on the medial side of right fore-arm below the right wrist joint. All the injuries were simple in nature and were caused by blunt weapon. On the same day at 6-30 a.m. he also medically examined Sakhi 1 Muhammad and found the following injuries on his person:

(1) A lacerated wound 6 x 1.5 x 1 c.m. on the right side of the head about 11 c.m. above the right pinna of the ear. (2) Two contusion marks 3 x 1 c.m., 2 x 1 c.m. respectively in the middle of the ear. (3) Swelling 10 x 8 c.m. on the lateral side of the right wrist-joint. Movements were difficult. There was also tenderness. He complained of pain in the joints. Injury No.1 was kept under observation while rest of the injuries were simple in nature. Vide X-ray No.973 to 976 MLC from M.S., D.H.Q. Hospital, Bahawalnagar there was no fracture of vault of skull, so injury No.1 was declared simple in nature. All the injuries were simple in nature and were caused by blunt weapon. On the same day at 5-40 a.m. he also medically examined Muhammad Arif and found two injuries on his person; one lacerated wound and the other a contusion mark. Muhammad Arif was not examined as P.W. in the Court. On the very day he also medically examined P.W.6 Mst. Sughran Bib and found the following injury on her person:

(1) A circular lacerated wound 1 x 3/4 x 1 c.m. on the upper side of left forehead. The injury was simple in nature, caused by blunt weapon.

7. P.W.6 Mst. Sughran, P.W.7 Muhammad Aslam complainant, P.W.8 Sakhi Muhammad and P.W.9 Yasin stated the motive and ocular account. p.W.7 Muhammad Aslam and P.W.10 Muhammad Hussain, S.H.O. were produced by the prosecution to prove the recoveries of incriminating articles.

8. The prosecution examined 10 P.Ws. in all to substantiate its case.

9. The appellants when examined under section 342, Cr.P.C. denied the prosecution evidence against them and stated that they had been involved due to enmity and party faction. They were innocent. They neither made statements on oath nor produced evidence in defence.

10. The learned trial Court after evaluating the evidence on record convicted and sentenced the appellants vide his impugned judgment.

11. I have heard the learned counsel for the parties and have perused the record. It was vehemently contended by the learned defence counsel that it was a sudden flare up, without premeditation and there was no previous enmity between the, parties. The case against the appellants falls under section 304, Part I, P.P.C. Munir and Muhammad Amir appellants had not caused injuries to the deceased. The injuries caused by them were of blunt weapons and simple in nature. P.W. Arif was not produced and the sentence awarded to the appellants for causing injury to him cannot sustain.

12. F.I.R. Exh.PJ recorded on the statement of P.W.7 Muhammad Aslam contains the names of the accused, the weapons carried by them, the names of the witnesses, the motive as well as the manner in which the occurrence took place. P.W.6 Mst. Sughran, P.W.7 Muhammad Aslam and P.W.8 Sakhi Muhammad were injured during the occurrence. Appellants Subah Sadiq, Wazir son of Ahmad Din and Wazir son of Ishaque were stated by the complainant and the eye-witnesses to have caused one injury each on the head of the deceased, whereas Subah Sadiq was also stated to have caused injury on the right knee of the deceased. The injuries on the head were declared grievous and sufficient to cause death in the ordinary course of nature individually and collectively. P.W.6 Mst. Sughran Bibi is stated to have received one simple blunt injury on her head caused by Munir Ahmad son of Ahmad Din. P.W.7 Muhammad Aslam received 3 injuries with blunt weapon on her head and wrist-joint at the hands of Wazir and Muhammad Amir sons of Ahmad Din. The injuries were simple in nature. P.W.8 Sakhi Muhammad received 3 injuries caused by blunt weapon i.e. on his head by Wazir son of Ishaque by Munir son of Ahmad Din on the wrist and by Muhammad Amir son of Ahmad Din on the head. Muhammad Arif injured had received 2 simple injur1es caused by blunt weapon stated to be caused by Subah Sadiq, but he was not produced as P.W.

13. The motive behind the occurrence is stated to be the previous election in which both the parties had supported the opposing candidates as well as immediate motive was playing of obscene songs on the tape-recorder. The parties are neighbourers and no untoward incident occurred as none of the parties had reported such occurrence before the police earlier to, the day of occurrence. P.W.6 Mst. Sughran is niece of the deceased, P.W.7 Muhammad Aslam is son of the deceased, P.W.8 Sakhi Muhammad is the sister's son of the deceased, whereas P.W.9 Yasin is nephew of the deceased. The eye-witnesses i.e. P.W.6 to P.W.9 corroborated each and made consistent statements and their statements are also in consonance with the statement of P.W.4 Dr. Noor Khan Tareen, who conducted autopsy on the dead body of the deceased as well as medically examined P.Ws. 6, 7 and

8. Appellants Wazir son of Ishaque, Wazir son of Ahmad Din, Muhammad Amir and Muhammad Munir led to the recovery of hatchet P3, Lathi P6, Soti P4 and Dang P5, all blood-stained secured by P.W.10 Muhammad Hussain S.H.O. vide memos. Exhs.PK, PN, PL and PM respectively attested by P.W.7 Muhammad Aslam. The police could not recover Dang at the instance of Subah Sadiq appellant stated to have been used by him during the commission of the offence. The ocular account furnished on record by the statements of eye-witnesses P.W.6 to P.W.9 is in consonance with the medical aspect of the case furnished on record by P.W.4 Dr. Noor Khan Tareen. The occurrence was stated to have taken place on 29-7-1985 at 4-30 p.m. whereas the F.I.R. Exh.PJ was lodged- by P.W.7 Muhammad Aslam at the Police Station Mandi Sadiq Ganj which is at a distance of 3 miles, on the same day at 5-00 p.m. The F.I.R. was lodged with promptitude and nothing was brought on record by the defence, i.e. the same was the result of preliminary investigation or deliberations.

14. No doubt no independent eye-witness was produced by the prosecution in support of its case, but the injuries on the person of P.Ws.6, 7 and 8 establish their presence at the spot as all of them had received injuries during the occurrence. Subah Sadiq, Wazir alias Nazir son of Ishaque (since dead) and Wazir son of Ahmad Din are stated to have caused one injury each on the head of the deceased, which were found individually and collectively sufficient to cause death by Dr. Noor Khan Tareen (P.W.4) and were also declared fatal. Subah Sadiq appellant had also inflicted Dang blow on the right knee of the deceased. They had not repeated the injuries on the vital parts of the body of the deceased. P.W.6, P.W.7 and P.W.8 had received simple injuries during the occurrence with blunt weapons. The conviction of the appellants under section 324/149, P.P.C. cannot be sustained and their conviction is altered to section 323/149, P.P.C. The conviction and sentence for causing injuries to Muhammad Arif P.W. (not produced) cannot sustain and their conviction and sentence is set aside.

15. There is admittedly no previous enmity between the parties. The incident occurred due to the playing of obscene songs on the tape-recorder. There was no premeditation. Subah Sadiq and Wazir son of Ahmad Din on the Lalkara of Wazir Jammu had given one blow each on the head of the deceased. Appellants Munir son of Ahmad Din and Muhammad Amir son of Ahmad Din had not caused any injury to the deceased. Later they caused simple injuries with blunt weapon upon P.Ws. 6 to.

8. The appellants had not raised any specific plea at the trial and they made denial simpliciter. The Court has to look into the circumstances appearing in the case and also to peruse minutely the evidence on record so as to form its own opinion. There was neither enmity between the parties nor was there any premeditation. The playing of obscene songs on the tape-recorder resulted into exchange of hot words and ensued the present occurrence. Wazir son of Waryam had raised Lalkara, on which the deceased alongwith the P.Ws. was attracted in the street. The parties are neighbourers.

16. Pursuant to the above discussion,. I am of the view that the case against appellants Subah Sadiq, Wazir son of Ishaque (since dead) and C Wazir son of Ahmad Din is made out under section 304, Part I, P.P.C. and section 323, P.P.C. on three counts each, whereas appellants Munir and Amir sons of Ahmad Din had committed an offence under section 323, P.P.C. on three counts each. The conviction and sentence of the appellants under section 148, P.P.C. is set aside. Subah Sadiq and Wazir Ahmad son of Ahmad Din appellants are convicted and sentenced under section 304, Part I, P.P.C. to p undergo 7 years' R.I. each and a'fine of Rs.20,000 each, in default whereof to suffer one year R.I. each. The fine, if realized, whole of it shall be paid to the legal heirs of the deceased as compensation. As regards sentence under section 323, P.P.C. Subah Sadiq and Wazir son of Ahmad Din remained in jail as undertrial and convict for more than 2 years. They have already undergone the sentence under that offence. They shall pay Rs.1,000 each to the injured P.Ws. on three counts, in default whereof to suffer one month R.I. each on each count. Appellants Munir and Muhammad Amir son of Ahmad Din are convicted and sentenced under section 323, P.P.C. on three counts each for causing injuries to P.W.6, P.W.7 and P.W.8 with a fine of Rs.1,000 each on each count which shall be paid to the injured P.Ws. as compensation. The appellants Subah Sadiq and Wazir are on bail, who shall be taken into custody and sent to jail to undergo the remaining sentence: Appellants Munir and Muhammad Amir sons of Ahmad Din are present on bail. They have already undergone the sentence, their bail bonds are discharged, but they shall deposit the amount of fine within two weeks,in the trial Court. Subah Sadiq and Wazir son of Ahmad Din appellants shall be extended the benefit of section 382-B, Cr.P.C. and their sentences shall run concurrently. N.H.Q./5-472/L?????????????????????????????????????????????????????????????????????????????????? Order accordingly.