1998 P Cr (PLP)

(4)??????? An abrasion 3/4" x 1/4" on the top of left shoulder. (5)??????? An abrasion 1/4" x 1/4" on the back of distal 1/3rd of proximel phalynx of right ring finger. Injuries No.1? to 3 were kept under observation whereas the others were declared simple in nature. Injuries No. 1 and 2 were caused by fire‑arm while the rest by some blunt weapon. The duration of the injuries was four to six hours before the examination. After X‑ray report, injuries No. 1 to 3 were declared simple in nature.

11. Dr. Muhammad Yaqoob P.W.7 also medically examined P.W.11 Mansab Khan son of Allah Dad, aged 22 years, on the same day and the following injuries were found on his person:‑ (1)??????? A lacerated wound 1‑1/2 x 1/8 x skin deep on the top of scalp, in mid? line 6" from the root of nose. (2)??????? An abrasion 1‑1/4" x 1/4" with swelling 2‑1/2" x 2‑1/2" round the wound, on the back and outer side of the distal 1/3rd of right fore‑arm. The injuries were kept under observation and the same were declared simple in nature after receiving X‑ray report. The injuries were caused with blunt weapon from four to six hours before examination.

12. On the same night, the aforesaid doctor also medically examined Tai Muhammad Khan son of Allah Dad P.W.12 aged about 18 years and found the following injuries on his person:‑ . (1)??????? A lacerated wound 1/2" x 1/8" x skin deep on the left side of scalp, 4" above left ear. (2)??????? An incised wound 1‑1/2" x 1/2" x bone deep on the back of distal half of middle phalynx and distal phalynx of left ring finger. Bone under?neath and nail were cut and distal inter‑phalyngeal joint dislocated. (3)??????? An abrasion 1/4" x 1/4" on the back of distal phalynx of right little finger. Injuries No.l and 2 were kept under observation while the third was declared simple in nature. Injury No.2 was caused with sharp edged weapon while the remaining were caused by blunt weapon within four to six hours before examination. After X‑ray report, middle, phalynx distal third of left ring finger of, Taj Muhammad was cut and as such injury No.2 was declared grievous.

13. On 10‑11‑1990, Dr. Muhammad Yaqoob Awan P.W.7 also medically examined Muhammad Iqbal s/o Muhammad Nawaz accused, aged 40 years, and found the following injures on his person:‑‑ (1)??????? A superficial lacerated wound with pusformation 1/2" x 1/4" on the back of middle of first phalynx of right index finger. (2)??????? A superficial lacerated wound 1/2" x 1/8" with pus formation on the back of middle of first phalynx of the middle finger of right hand. (3)??????? A superficial lacerated wound 1/4" x 1/4" with pus formation on the back of middle of first phalynx of the right index finger. (4)??????? A superficial lacerated wound with pus formation 1/2" x 1/4" on the outer side of base of right thumb. According to the doctor, all the injuries were simple in nature and caused with blunt weapon two to three days before the examination.

14. On 10‑11‑1990 at 12 noon, Dr. Muhammad Yaqoob Awan P.W.7 also medically examined the convict Gulbas son of Ghulam Abbas, aged about 70 years, and found the following injuries on his person:‑ (1)??????? A superficial lacerated? wound 1" x 1/8" x skin deep across the top of scalp. The wound was full of clotted blood. (2)??????? A bruise 1" x 1/4" on the back of middle of scalp 2‑1/2" behind injury No. 1. (3)??????? A bluish contusion 6" x 2" across the back of left shoulder. (4)??????? A bluish contusion 11' x 1" across the back of right chest. It was in oblique direction from the shoulder to mid‑line. (5) An abrasion 1/2" x 1/8" on the front of middle of right leg. According to the aforesaid Medical Expert, all the injuries were simple in nature and caused with blunt weapon, two to three days before the examination.

14. Blood‑stained earth was taken into possession from the places of the dead‑bodies of Ghulam Abbas and Ata Shabbir on 8‑11‑1990 vide recovery memo. Exh.P.U. and Exh.P.V. respectively which were attested by Farooq Ahmad P.W.15, Sikandar Baig P.W.17 and Lal Khan (give up P.W.). On 9‑11‑1990, empty cartridge P.9 of 12 bore gun was also recovered from the spot vide recovery memo Exh.P.X. It is pertinent to mention here that the reports of the Chemical Examiner and that of the Serologist were found positive.

15. Muhammad Nawaz, Gulbaz and Muhammad Iqbal convict/appellants were arrested by P.W.17 Sikandar Baig, S.‑I. on 10‑11‑1990. Shaukat Hayat and Muhammad Sartaj convict/appellants were arrested by him on 18‑11‑1990 and 1‑12‑1990 respectively. On 10‑11‑1990, blood‑stained Kurta P.8 of Gulbaz was recovered vide memo Exh.P.D. which was attested by Ghulam Haider, P.W.14 and Sikandar Baig P.W.17. On pointation of Gulbaz convict/ appellant hatchet P.10 was recovered from his residential Kotha on 16‑11‑1990 which was attested by Sikandar Baig S.‑I. P.W.17, Farooq Ahmad P.W.15 and Muhammad Ali (given up as unnecessary). On the pointation of Muhammad Nawaz appellant, Soti P.11 was recovered from his residential, Kotha vide memo Exh.P.Z. on 16‑11‑1990 and the attesting witnesses are the same: On 18‑11‑1990, Muhammad Iqbal convict/appellant led to the recovery of 12 bore single barrel gun P.12 from his house which was recovered vide memo Exh.P.AA. and the attesting witnesses are the same. Shaukat Hayat appellant got recovered 12 bore carbine P.13 from his residential room on 23‑11‑1990 'which was taken into possession vide memo Exh.P.B. and the attesting witnesses are the same. On a‑12‑1990, Muhammad Sartaj convict/appellant got recovered 12 bore single barrel gun P.14 from his residential Kotha which, was taken into possession vide memo Exh.P.C.C. It is pertinent to mention here that the report of the Forensic Science Laboratory regarding weapon of offence recovered from Muhammad Iqbal appellant was found positive.

16. The motive as alleged by the prosecution in the F.I.R. is that there is a dispute of land between the parties.

17. The prosecution produced as many as seventeen witnesses in all. Allah Dad P.W.10, Mansab Khan P.W.11, Taj Muhammad P.W.12 and Mst. Shafia Begum appeared to prove motive and the actual occurrence, whereas the evidence of lady Dr. Hameeda Khatoon P.W.3, Dr. Muhammad Yaqoob Awan P.W.7 and Dr. Muhammad Iqbal Siddiqui P.W.13 was about the medical examination and the post‑mortem examination of the injured as well as the deceased. Mohsin Raza Shah P.W.2 prepared the site plan of the place of occurrence. Farooq Ahmad P. W. 15 is a recovery witness of different weapons of offence recovered from the convict/appellants on various dates and the Investigating Officer Sikandar Baig S.I. P.W.17 apart from the formal witnesses.

18. While the appellants in their statements under section 342 Cr.P.C. controverted all the allegations and pleaded themselves as innocent in the matter and stated their own version except Shaukat Hayat appellant, as under:‑ "On the evening preceding the day of occurrence, Ghulam Abbas, Ata Shabbir deceased and Allah Dad, Mansab Khan and Taj Muhammad P.Ws came to our house in order to attack Muhammad Iqbal accused for his having beaten‑up the children of Allah Dad P.W. but he was not there. I and my women‑folk entreated with them on which they went away issuing threats that Muhammad Iqbal accused would not be spared. On the day of occurrence, at about ' Kuftanwela', while in the house with women‑folk, I heard Muhammad Iqbal accused raising hue and cry near the well of one Muhammad Nawaz. On this, I rushed there with in Mst. Sarwar, Qammer Sultana, Mst. Sadiq, Riffat and Mst. Kausar and saw Ghulam Abbas and Ata Shabbir deceased armed with hatchet and Soti respectively injuring Muhammad Iqbal accused, who was on the ground. Masab Khan, Taj Muhammad P.Ws. armed with .12 bore guns, Allah Dad P.W. carrying Soti and Shafia Begum and Kalsoom P.Ws. were also reached there from the complainant side. Mansab Khan and Taj Muhammad P. Ws. started firing indiscriminately as a result of which the two deceased and Shafia Begum and Allah Dad P.Ws. got injured. Allah Dad P.W. gave Soti blow to me. Muhammad Iqbal accused picked up the hatchet of Ghulam Abbas deceased and injured the hand of Taj Muhammad P.W. with the same as he was about to fire at him. Women from either side hurled stones at each other resulting into injuires to Mansab Khan, Taj Muhammad, Allah Dad, Shafia Begum and Kalsoom P.Ws. from the complainant side and Mst. Sarwar, Qamer Sultana, Mst. Sadiq, Riffat and Mst. Kausar from our side. I and the other injured appeared before the police on the same night at about 10‑00 p.m. at Police Station Tallagang and apprised them of the true facts. Police promised to take action against the complainant party but then backed out. Muhammad Nawaz, Muhammad Sartaj and Shaukat Hayat accused were neither present at the spot nor did they participate in the occurrence. " Shaukat Hayat convict/appellant also controverted the allegations and claimed himself to be innocent and narrated his own version as follows:‑‑ "Ghulam Abbas deceased developed illicit relations with his sister‑in?-law Sadiq Sultana. The latter's cousin Ghulam Rabani took exception to it and reprimanded the deceased. I sided with him on this issue and my relations with Ghulam Abbas deceased and his other relatives became strained. The incident took place differently and. the present case was set up falsely by twisting the facts and the complainant party had me involved therein because.of the said strained relations. A day prior to the occurrence. Muhammad Iqbal accused and I were going to the former?s Dhoke on his tractor. The children of Allah Dad P.W. were playing on the way. Their ball struck the tractor of Muhammad Iqbal accused who was taken by surprise and nearly lost control of the tractor. He and I abused the children and Muhammad Ghulam Abbas, Ata Shabbir deceased and Allah Dad, Mansab Khan and Taj Muhammad P.Ws went to the house of Muhammad Iqbal accused in the evening to attack him but he was not here. The women‑folk entreated with them on which they came back leaving the threat that they would deal with Muhammad Iqbal deceased. This was also a reason for my false involvement." (i)???????? It being a case of two versions and putting the same in juxta position, the defence plea appears to be plausible and more near to the truth, therefore, benefit, of doubt should be given to the convicts/appellants. (ii)??????? That Muhammad Nawaz and Gulbaz appellants of the age of about 76 years and 71 years respectively at the time of occurrence were not expected to participate in the occurrence and in fact being elder must have tried their level best to avoid any fateful incident. (iii)?????? According to the version of the defence, only Muhammad Iqbal and Gulbaz appellants were present at the spot and the remaining appellants did not participate in the occurrence. (iv)?????? The recoveries from the convicts/appellants having made on different dates in presence of same witnesses and in violation of section 103 Cr.P.C, are not confidence inspiring to used as independent corroborative evidence. (v)??????? All the eye‑witnesses namely Allah Dad P.W.10. Mansab Khan P.W.11, Ted Muhammad PX12 and Mst. Shafia Begum P.W.16 are Interested and Inimical towards the appellants, therefore, need Independent corroboration which is not available In the present case. (vi)?????? The prosecution alleged motive in the F.I.R. that there was a dispute of the land between the parties whereas in the statements of the P.Ws made before the Court introduced a now motive of Banns, the contradictory story of motive made it doubtful. (vii) ???? The convicts/appellants Muhammad Iqbal and Gulbaz while acting in their self‑defence in reply to the aggression of complainants side did not commit any offence. (viii) ???? That the medical evidence being in conflict to the statements of the eye?witnesses, the same does not provide independent corroboration, (ix)?????? The evidence of motive having given by the eye‑witnesses, it even proved cannot be used as independent corroboration in the given facts. That neither the place of recovery of empties is mentioned in the site ?plan, nor the Degarwaila time of occurrence as alleged by the prosecution finds mentioned in the medical evidence, which are strong circumstances in favour of defence, 20, The learned State Counsel argued that the presence of injured eye?witnesses at the spot being beyond any shadow of doubt, they truthfully explaining the injuries of the appellants are trust worthy. The presence of Gulbaz and Muhammad Iqbal convicts/appellants at the spot is admitted and ocular account of the occurrence of properly lodged is F.I.R. duly corroborated by the evidence of recovery, motive and medical evidence, Muhammad Nawaz and Gulbaz convicts/appellants are real brothers. Muhammad Sartaj and Muhammad Iqbal appellants are the sons of Muhammad Nawaz appellant, whereas Shaukat Hayat appellant is his nephew being the son of his maternal‑cousin. The daughter of Muhammad Iqbal appellant is married to a first cousin of Shaukat Hayat appellant. Mansab P.W.II and Taj Muhammad P.W.12 are the real brothers and P.W.10 is real brother of the deceased. Mst. Shafia Begum is daughter of Ghulam Abbas deceased whereas Mst. Kalsoom is the daughter of Allah Dad P.W.10. The appellants as well as the deceased are also inter‑related as Muhammad Nawaz and Gulbaz appellants are paternal cousin by relation of the deceased,

21. We have examined the evidence on record. There is no enmity existed between the parties except the motive as narrated in the F.LR. and in the statements of the appellants, who are related inter‑so, The place of occurrence is in the field and both the parties having not disclosed the true motive behind tile incident and the original motive remained shrouded In the mystery. The respective versions put‑forward by the parties are not appealable to mind to the happening of occurrence In true manner. Therefore, we are of considered opinion that it was sudden fight without premeditation. Rather it being a free fight, each of the appellant is responsible qua the role attributed to him. We are fortified by the principle laid down by the Supreme Court of Pakistan reported as Abdur Rehman, v, Gadai Khan and 3 others 1972 SCMR 676 and relevant observation at page 681 is reproduced here under:‑ "The principles governing the right approach in a case of free fight were enunciated by this Court in Syed Ali Bepari v, Nibaran Mollah and others PLD 1962 SC 502, it was pointed put that:- "In a case of this type the parties do not generally come out with the true story. It is a normal incident of an "adversary proceeding" to minimise one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and the circumstances". It is an admitted fact that the two convicts/appellants Gulbaz and Muhammad Iqbal were injured and all the eye-witnesses were also injured, therefore, their presence at the spot could not be doubted. It is also an admitted fact that the two deceased were died in the incident. The medical evidence corroborated with the eye‑witnesses. The motive is always a double edged weapon and even without motive, the murder could have been committed. Iii this respect, reliance can be placed on 1987 SCMR 1136. Keeping in view the circumstances, manner of incident, injuries attributed to both the parties and the motive as alleged by both the parties, if put in a juxtaposition then it is crystal clear, as mentioned above, that it is a case of free fight, therefore, each and every one is responsible of his own individual act attributed to him. Ghulam Abbas deceased was murdered by Shaukat Hayat appellant therefore, his sentence under section 302, P.P.C. on one count is maintained Muhammad Sartaj appellant is attributed injury No.1 to Ata Shabbir deceased which is grievous in nature and dangerous to life and are sufficient to cause the death in the ordinary course of nature, as opined by Dr. Muhammad Iqbal Siddiqui P.W.13. Therefore, his sentence on this count under section 302, P.P.C. is maintained. Muhammad Iqbal appellant is also attributed fire‑arms injuries to Ata Shabbir deceased, but the doctor opined that the injuries attributed to him were simple in nature and caused by fire‑arm. Therefore, his sentence of death from two counts is converted into life imprisonment on one count. Muhammad Sartaj appellant inflicted fire‑arm injuries to Mst. Shafia Begum P.W.16 which hit on the ba0ck of her right arm. According to P.W.3 lady Dr. Hameeda, Khatoon, all the injuries were simple in nature as there was no fracture of any bone. Muhammad Sartaj appellant also inflicted fire‑arm injuries to Allah Dad P.W.10 and according to Dr. Muhammad Yaqoob Awan P.W.7,? injuries No. 1 to 3 were caused by fire‑arm and were kept under observation. But the prosecution failed to produce any X‑ray report before the learned trial, Court. Muhammad Nawaz appellant inflicted Soti blow to Mst. Kalsoom on the right side of her head. According to lady Dr. Hameeda Khatoon P.W.3, the injury was kept under observation and X‑ray report was not brought on record. He also inflicted Soti blows on the head of Mansab Khan P.W.11. According to Dr. Muhammad Yaqoob Awan P.W.7, the injuries were kept under observation and caused by a blunt weapon and the prosecution failed to bring on record any X‑ray report. He also caused Soti blows to Taj Muhammad P.W.12. According to Dr. Muhammad Yaqoob Awan P.W.7. injuries No. l and 2 were kept under observation while the third was declared as simple. The prosecution failed to bring on record any X‑ray report. Gulbaz appellant inflicted injury on the lady finger of Taj Muhammad P.W.13 which was also kept under observation by Dr. Muhammad Yaqoob Awan P.W.7.

22. The prosecution tailed to bring on record X‑ray reports regarding the injuries inflicted by the appellants to the injured witnesses. Therefore, these could be considered as simple in nature. In this behalf, reliance can be placed on Badshahzada. v. The State 1993 PCr.LJ (Peshawar)

699. The relevant observation is reproduced as under‑,‑ 'No result of X‑ray was brought on the file to show any fracture of the left hand. So this injury can also be taken to be simple in nature".

23. Nevertheless, the question as to what offence had been committed by the appellants deserves examination. Therefore, section 324, P.P.C. of the, P.P.C. is reproduced hereunder:‑ "Attempt to Commit Qatl‑i‑Amd‑‑‑ Whoever does any act with such intention or knowledge and under such circumstances, that, if he by that act caused Qatl, he would be guilty of Qatl‑i‑Amd, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall be liable to the punishment provided for the hurt caused: Provided that, where the punishment for the hurt is Qisas which is not executable, the offender shall be liaebl to Arsh and may also be punished with imprisonment of either description for a term which may extend to seven years". The bare reading of the aforementioned section of law, it would be, thus, appreciated that where hurt had been caused to any person, the offender was liable to the punishment provided only for the hurt caused and not for the attempt to commit Qatl‑i‑Amd. As we have observed above, that it was a free fight. Therefore, keeping in view the ingredients of section 324, P.P.C., the offenders are culpable and punishable not for attempt to commit Qatl‑i‑Amd but for the injuries actually caused by them on the injured witnesses. Consequently, the convictions of the appellants recorded under section 324/149, P.P.C. and punishment awarded to them there under are set aside. Resultantly, in respect of injuries on the injured witnesses, all of them except Muhammad Sartaj appellant, are convicted under section 337‑F(ii), P.P.C. Each one of them shall pay Rs.5,000 as Daman to the injured person to whom they inflicted injuries as mentioned above and shall also suffer two and a half years' R.I. as 'Tazeer'. The fire‑arm injuries inflicted by Muhammad Sartaj to Mst. Shafia Begum fall within the purview of sub‑clause (iii) of section 337‑F of the P.P.C. Therefore, he is convicted under section 337‑F(iii) of the P.P.C. and is directed to pay Rs.5,000 as Daman to Mst. Shafia Begum P.W.16 and also to undergo two and a half years R.I. as 'Tazeer' . The sentence of imprisonment shall, however, run concurrently. The sentence and conviction of Shaukat Hayat, Muhammad Sartaj and Muhammad Iqbal appellants regarding fine is maintained and is not altered, However, conviction and sentence of life imprisonment to Muhammad Nawaz and Gulbaz appellants under section 302 and 149, P.P.C. is set aside. The death sentences of Shaukat Hayat and Muhammad Sartaj on one count are maintained and Murder Reference qua Muhammad Iqbal appellant is replied in negative, therefore, his death sentence awarded on two counts is not confirmed. H.B.T./M‑579/L????????????????????????????????????????????????????????????????????? Order accordingly.