1989 PLP 4712 (MLD)

RIAZ AHMAD, J.‑‑Appellants Khushi Muhammad and his brothers, namely, Sikandar, Ata Muhammad, Ghulam Muhammad and Shah Muhammad all sons of Ghulam Rasul were tried alongwith Sami Ullah and Khan Muhammad sons of Sikandar and Muhammad Shafaat son of Ghulam Siddique ‑‑ by the learned Additional Sessions Judge at Vehari on the charges under sections 302, 323, 325, 148 and 149 PPC for having caused the murder of Fazal Elahi deceased and for having caused injuries to Fazal Karim PW‑8 and also to Tanveer PW7, Bashiran Bibi, Mst. Qadeer‑ul‑Nisa and Mst. Fazal Bibi PWs.

2. Vide judgment dated 11‑7‑1984, the learned Additional Sessions Judge found only appellants Khushi Muhammad and Muhammad Ghulam guilty on the charge under section 302 PPC for having caused the murder of Fazal Elahi deceased. Accordingly, both the appellants were convicted and sentenced on the said charge. The appellant Khushi Muhammad was sentenced to death, and to pay a fine of Rs. five thousand only, or in default thereof, to suffer further rigorous imprisonment for a term of one year.

3. Appellant Ghulam Muhammad on the; aforesaid charge was sentenced to undergo life imprisonment, and to pay a fine of Rs. five thousand, or in default, to suffer further rigorous imprisonment for one year. It was further directed by the learned trial Judge, that half of the amount of fine, if recovered, shall be paid to the heirs of the deceased.

4. Appellants Ghulam Muhammad, Ata Muhammad, Sikandar and Shafaat were found guilty on the charge under section 325 PPC for causing grievous injuries to Fazal Karim PW‑8 with blunt weapons, and thus each of the appellants was sentenced to suffer rigorous imprisonment for a term of four years each plus a fine of Rs. three thousand each, or in default whereof, to suffer further rigorous imprisonment for a term of nine months each. It was further directed that in the event of the recovery of fine from these appellants, half of the same shall be paid to Fazal Karim PW‑8.

5. Appellants Ghulam Muhammad, Ata Muhammad, Sikandar and Shafaat were also found guilty on the charge under section 323 PPC for causing simple injuries to Tanveer, PW‑7, and thus each of them was sentenced‑to undergo rigorous imprisonment for a term of six months each and to pay a fine of Rs. five hundred each, or in default thereof, to suffer further rigorous imprisonment for a term of three months each.

6. Appellants Sikandar, Ata Muhammad, Ghulam Muhammad, Shah Muhammad, Khushi Muhammad, Sami Ullah, Khan Muhammad and Shafaat were also convicted on the charge under section 148 PPC, and were sentenced to suffer rigorous imprisonment for a term of two years each. It was further directed that the sentence imposed upon appellants Ghulam Muhammad, Ata Muhammad, Sikandar and Shafaat would run concurrently. The appellants were, however, acquitted of the charge under sections 323/325 P.P.C. for having caused injuries to Bashiran Bibi, Qadeer‑un‑Nisa and Fazal Bibi. They were also given the benefit under section 382‑B Cr.P.C.

7. Aggrieved by the aforesaid convictions and sentences, the appellants have preferred this appeal, while the complainant has also filed a Revision Petition calling in question the acquittal of the appellants, other than Khushi Muhammad, on the charge under section 302 PPC with the prayer that the sentences in respect of these appellants be enhanced in accordance with law and the sentence of Ghulam Muhammad, appellant, under section 302 PPC be enhanced to death. The case has also been referred to us under section 374 Cr.P.C. This judgment shall dispose of the appeal, the revision as well as the Reference.

8. Occurrence resulting into the death of Fazal Elahi deceased and injuries to PWs took place on 14th of January, 1983 at 7.00 a.m. in field of Killa No. 8 of Square No. 58 in Chak No. 190‑EB situated at a distance of 14 miles from Police Station Vehari, Saddar. Occurrence was reported at the police station vide FIR Exh. P.K. lodged by Abdul Hakim, PW6, and the same was recorded by Azizur Rehman, Sub‑Inspector, PW 11.

9. In brief, the prosecution case as disclosed in the FIR was that on the fateful day, Fazal Karim, PW and his sons Fazal Elahi deceased and Tanvir injured eye‑witness were irrigating their land. Khushi Muhammad, Shah Muhammad and Ata Muhammad, appellants sons of Ghulam Rasul and Sikandar and his sons, namely, Sami Ullah, Hidayat Ullah (since dead) and Khan Muhammad and Shafaat armed with hatchets and clubs came there, and proclaimed that they wanted to irrigate their land situated in Chak No. 190‑EB through the land of the complainant side. Whereupon, Fazal Karim and Fazal 8lahi told them, that since they were themselves irrigating their wheat crop, therefore they could not allow the accused side to carry the water through their land. At this reply, appellant Ghulam Muhammad raised a Lalkara that Fa7al Karim and others be taught a lesson for not allowing to carry water, and held Fazal Elahi in his fold. Khushi Muhammad gave a hatched blow on the head of Fazal Elahi, who fell down but stood up and ran towards his Dhari, but again fell down at a short distance. Appellant Ata Muhammad caused injuries on the head of Tanveer with a hatchet, while appellants Shafaat, Sikandar and Ghulam Muhammad inflicted Sota blows on Tanveer PW. Shah Muhammad also inflicted a hatchet blow on the head of Mst. Bashiran while Mst. Qadeer‑ul‑Nisa and Fazal Bibi were assaulted by Hadayet Ullah (since dead), Khan Muhammad and Sami Ullah. Abdul Hakeem and Bashir were attracted to the spot, and they 'intervened to rescue the complainant side. Thereafter, all the appellants left the scene of occurrence alongwith their weapons and went to their own tubewell. In the meanwhile, deceased Fatal Elahi succumbed to his injuries at the spot.

10. On 15th of January, 1983 Dr. Ghulam Rasul, PW‑2 Medical Officer, DHQ Hospital Vehari conducted the post‑mortem examination on the dead body of Fazal Elahi deceased, and noticed the following injuries on his person:‑‑ (1) An incised wound 12 cm x 1 cm x bone cut menages and brain tissues cut wound extended transversely 7 cm from right ear and 7 cm from left ear on the back of head. (2) Abrasion 1 cm x 1 cm on head in front of injury Noll. In the opinion of the doctor, death had occurred due to shock and hemorrhage on account of injuries to the brain. Injury No. 1 was grievous caused with sharp‑edged weapon and injury No.2 was simple caused with blunt weapon.

11. On 14th of January, 1983 the said doctor also examined Fazal Karim PW‑8 and noticed the following injuries on his person:‑‑ (1) Lacerated wound 4 cm x bone deep 8 cm away from, right ear. (2) Lacerated wound 3 cm x 1 cm x bone deep 9 cm away from left ear. (3) Swelling 27 cm x 22 cm on back of upper part of left forearm close to elbow joint. (4) Swelling 7 cm x 4 cm on the back of left hand. (5) Lacerated wound 5 cm x 2 cm x bone deep on inner and backside of upper part of ring finger. (6) Swelling 5 cm x 4 cm on lower part of right elbow. (7) Lacerated wound 1 cm x 1/2 cm on the back of hind part of right index finger. (8) Contusion 10 cm x 2 cm on the outer part of right thigh at mid area. All the above‑mentioned injuries had been caused with blunt weapon, injuries 1, 2 and 4 were declared simple, while injuries 3 and 5 were grievous.

12. On the same day the said doctor medically examined Tanveer PW‑7, and found the following injures on his body:‑‑ (1) Lacerated wound 7 cm x 1/2 cm x bone deep on the head 7 cm away from left eyebrow. (2) Lacerated wound 7 cm x 2 cm x bone deep on head 7 cm away from left ear. (3) Abrasion 1 cm x 1 cm close to right eyebrow. (4) Abrasion 4 cm x 1 cm on the inner side of upper part of right forearm. (5) Swelling 10 cm x 6 cm on the back of right forearm at its lower area. (6) Swelling 10 cm x 6 cm on the back of right hand. (7) Swelling 16 cm x 12 cm' on the back of left leg at its mid. (8) Swelling 5 cm x 3 cm on back of lower part of left leg. (9) Swelling 32 cm x 12 cm on the outer and front part of right lower leg. (10) Swelling 6 cm x 4 cm on the top of right shoulder.. All the aforesaid injuries had been caused with blunt weapon and injuries Nos. 1 to 5 and 9 were kept under observation, and after the receipt of the X‑ray report, all the injuries were declared as simple.

13. Mst. Bashiran Bibi, who was not examined by the prosecution, received one injury which was simple in nature. Similarly, Mst. Qadeer‑ur‑Nisa, who also received one injury, while Mst. Fatal Bibi had received one injury which was declared as simple were not examined by the prosecution.

14. Hidayatullah son of Sikandar, appellant, who died before the commencement of the trial and Ghulam Muhammad appellant were also found injured and the police got them medically examined. Hidayat Ullah (since dead) had received a contusion on the left side of head and the injury was declared as simple in nature. Appellant Ghulam Muhammad had also received one lacerated wound on the head caused with blunt weapon and the same was declared as simple.

15. On 15th of January, 1983, one Habib Ullah, produced the appellants Sikandar, Sami Ullah, Ata Muhammad, Ghulam Muhammad and co‑accused Hidayat Ullah (since dead) before the Investigating Officer, Aziz‑ur‑Rehman, (PW 11) Sub‑Inspector, S.H.O., Police Station Saddar, Vehari, who took them into custody.

16. Appellants Khushi Muhammad, Shah Muhammad, Khan Muhammad and Muhammad Shafaat were produced by Habib Ullah before the Investigating Officer on 18th of January, 1983, thus they were arrested.

17. On 18th of January, 1983 all the appellants while in police custody volunteered to cause the recovery of their respective weapons of offence. Consequently, appellants Khushi Muhammad, Ghulam Muhammad, Shah Muhammad, Sikandar, Hadayal Ullah (since dead) Ata Muhammad, Sami Ullah, Khan Muhammad and Shafaat in police custody led the police and got recovered blood‑stained hatchet P8, Sota P9, hatchet P10, Sota P11, Sota P12, hatchet P13, hatchet P14, Sota P15 and a Sota P16 respectively. All these weapons were taken into possession by means of recovery Memos. Exh. PP, PO, PR, PS, PT, PU, PV, PX and PY respectively attested by Muhammad Akhtar PW‑10 and Hakim Ali (not produced) besides the Investigating Officer. The hatchet recovered at the instance of appellant Khushi Muhammad was found to be stained with human blood vide reports of the Chemical Examiner and Serologist Exh. PAA/PBB respectively.

18. To prove its' case at the trial, the prosecution placed reliance upon the ocular testimony furnished by PW6 Abdul Hakeem, maternal‑uncle of the wife of Tanvir PW

7. Tanvir PW7, an injured witness is a brother of the deceased and PW8 Fazal Karim an injured eye‑witness, is father‑ of the deceased. Mst. Bashiran, Mst. Qadir‑un‑Nisa and Mst. Fazlan Bibi, injured eye‑witnesses were given up. Similarly, Bashir Ahmed, another eye‑witness was also not produced being not available.

19. When examined under section 342 Cr.P.C., the defence plea taken up was that the complainant party was aggressor, inasmuch as, Ghulam Muhammad, appellant and Hidayat Ullah, (since dead) were irrigating their fields alongwith their personal servants Noor Muhammad and Ashraf. Fazal Elahi (deceased), Fazal Karim and Tanvir PWs restrained them from irrigating the land and launched an attack. Fazal Elahi (deceased) inflicted a hatchet blow to Ghulam Muhammad and Hidayat Ullah (since dead) acting in self‑defence gave a Kassi blow to Fazal Elahi (deceased) and Ashraf also inflicted a Dang blow to him. Tanvir PW7, and Fazal Karim PW8, injured Ashraf and Noor Muhammad, servants of the appellants who, in retaliation, caused injuries to Tanvir PV1'7 in exercise of right of their self‑defence and that of Ghulam Muhammad, appellant, and Hidayat Ullah (since dead).

20. With the assistance of the learned counsel for the appellants, the State and that of the complainant, we have carefully perused the record and we have also heard the various contentions raised by them.

21. It was contended by the learned counsel for the appellants that the defence plea in this case was nearer the truth and the learned trial Judge had erred in discarding the same. It was further argued that the appellants had acted in self‑defence and they had not exceeded in the exercise of aforesaid right. It 'as also argued that it was a sudden affair and there was no pre‑meditation and thus it was not a case to attract the applicability of sections 148 and 149 P.P.C. and even if, the appellants are held guilty, they would be liable individually. It was further argued that the occurrence had not taken place in Killa No.8 of Spuare No. 55 but the same had taken place in Killa No. 3 of the said square near the syphon.

22. We have carefully examined these contentions but we are unable to agree with the learned counsel for the appellants. Both the pleas i.e. self‑defence and the sudden fight arc mutually destructive of each other. In sudden fight, the question of self‑defence does not at all arise. It is noteworthy to mention that no suggestion on the defence line was put to Abdul Hakeem, P.W.6, the maker of the F.I.R. However, the defence case was put up to other eye‑witnesses, but, they denied the same. The defence plea is also not worthy of belief because nothing has been brought on the record to show as to why the complainant side would desist the appellants from irrigating their own land and particularly so, when the eye‑witnesses themselves admit that there was no previous enmity between the two sides. Hence the crucial question is that in the absence of any enmity or motive, whether the complainant side would rush to restrain the appellants from irrigating their fields. According to the defence, Noor Muhammad and Ashraf, servants of the appellants, were also injured in the occurrence, but unfortunately, there is nothing on the record to show that in fact, they were injured, but, they were not got medically examined nor their medico‑legal reports had been tendered in evidence. Therefore, we are not prepared to believe the manner of the occurrence as narrated by the defence. It is further pertinent to mention that none of these servants appeared in defence and, therefore, their absence goes a long way to show the hollowness of the defence plea.

23. The facts of the case clearly established the presence of the appellant Ghulam Muhammad and Hidayat Ullah (since dead) who were injured and similarly the presence of Tanvir PW 7 and Fazal Karim, PW 8, who also bear stamp of injuries cannot be denied. In our view, both the injured eye‑witnesses are the natural witnesses of the occurrence being the victims of attack. Abdul Hakeem, PW 6, the maker of the F.I.R., is related to the complainant side through Tanvir PVV 7 and in the absence of any previous enmity between the parties, we are of the view that Abdul Hakeem, PW 6, had seen the occurrence and, therefore, his truthfulness cannot be doubted because he also owned land in the same Chak and at the time of occurrence, he was having round of his crops p and resided at a Bheni in Square No. 52 of the said Chak. Abdul Hakeem,'PW6, was present in his Bheni when he was attracted to the scene of occurrence after hearing hue and cry, therefore, he is also the natural witness or the occurrence. According to the prosecution, the appellants had demanded the passage of water in their own land, through the lands of the complainant side but the complainant side at that time refused to allow such passage because they were already irrigating their own wheat crop. On the refusal of the complainant side, the appellants threatened to resort to the violence and in fact, they launched an attack. After appraisal of the prosecution evidence, its totality leads us to conclude that to begin with, the appellants had no intention to launch an attack and, in our view, the refusal on the part of the complainant side to allow the passage of water to the appellants infuriated them and during the exchange of hot words, the parties resorted to the violence.

24. It was also contended by the learned counsel for the appellants that the F.I.R. in this case could not have been recorded at 9.30 a.m. because the police station was situated at a distance of 14 miles and the occurrence had taken place at 7 a.m. and, therefore, it was not possible for the complainant to have reached the police station in such a short time. Unfortunately, we cannot pay any heed to this aspect of the case because the record is silent on this issue. The defence had not at all cross‑examined the maker of the F.I.R. on this issue and, therefore, we cannot consider this aspect of the case to doubt the veracity of the F.I.R. It was further contended that since the injuries of the appellant Ghulam Muhammad and Hidayat Ullah (since dead) were suppressed by the complainant side, therefore, the prosecution case was doubtful. No doubt, it is the duty of the prosecution to explain the injuries received by accused side but to draw adverse inference, on account of such omission, depends upon the peculiar facts of each case. PW 6 Abdul Hakeem, however, stated in cross‑examination that there was no question of suppression but in fact; he had not remembered it. After careful consideration of the facts, we are of the view, that where so many persons were involved on both sides and were resorting to the violence, such omissions can take place and, therefore, it was not suppression but it was a lapse of memory, on the basis of which, such omission took place and, therefore, we cannot attach any importance to it.

25. The evidence as to the recovery of blood‑stained hatchet at the instance of Khushi Muhammad was also criticised on the ground that no resident of the locality was associated while recovering the weapon. We have considered this aspect but find no force in it because Muhammad Akhtar, PW 10 and Azizur Rehman, S.I., PW 11, the investigating officer, are disinterested witnesses and, therefore, the recovery cannot be doubted. We have also carefully perused the statement' of Muhammad Akhtar, PW10 and we find no fault in it, so as to discard his testimony. In fact, it was that hatchet, with which, Khushi Muhammad had inflicted a fatal blow to the deceased.

26. To sum up, we are of the view that in the absence of previous enmity and in view of the admission of the prosecution witnesses to the effect, that it was a sudden affair, the possibility of formation of an unlawful assembly for prosecuting the common object is ruled out. We are of the view, that, in fact, it was a sudden I affair and in heat of passion, the quarrel had taken place. Accordingly, we have no hesitation to set aside the conviction of the appellants under section 148 of the Pakistan Penal Code.

27. The deceased Fazal Elahi received two injuries; injury No. 1 was an incised wound measuring 12 cm x 1 cm which had injured the brain. The second injury was a simple abrasion. According to the prosecution case, the fatal injury No. 1 to the deceased was caused by Khushi Muhammad, appellant and the prosecution evidence on this score is corroborated by the recovery of blood stained hatchet at the instance of Khushi Muhammad appellant. Since we have held that it was a sudden affair, therefore, each of the appellants had to suffer individually for his own act. As far as the conviction of Ghulam Muhammad, appellant, on the charge under section 302 P.P.C. is concerned, the same is set aside. For the murder of Fazal Elahi (deceased), we hold only Khushi Muhammad appellant, guilty on the said charge.

28. Next question is whether the act of Khushi Muhammad, appellant, would be covered by the provision for causing grievous injuries to Fazal Karim, PW.8, is concerned, their conviction is maintained. These appellants remained as under -trial prisoners for about 1‑1/2 years. They were convicted on 11‑7‑1984, but their sentence was suspended by this Court on 27‑10‑1984. In this view of the matter, we are of the view, shat the sentence already undergone by them, on the charge under section 325 P.P.C., would meet the ends of justice. However, the sentence of fine, imposed upon them is maintained. They shall deposit the fine by 15th of March, 1989. Half of the fine, if recovered, shall he given to Fazal Karim, PW. In the event of the failure, on their part, to deposit the fine, they shall be arrested and shall suffer rigorous imprisonment for a term of nine months each.

31. The conviction of Ghulam Muhammad, Ata Muhammad, Sikandar and Shafaat, on the charge under section 323 P.P.C. for causing simple injuries to Tanvir PW 7, is also maintained. They were sentenced to suffer six months' rigorous imprisonment on the said charge. In our view, the sentence already undergone by these appellants on the said charge, would meet the ends of justice. The sentence of fine, imposed upon them, is maintained. They shall deposit the fine by 15th of March, 1989. In the event of the failure on their part, to pay the fine, they shall be arrested and shall suffer rigorous imprisonment for a term to three months each.

32. With these observations and modification in the sentences, this appeal is dismissed and the Reference is answered accordingly.

33. As far as the Revision Petition preferred by the complainant is concerned, we do not find any substance in it. We have already come to the conclusion that Ghulam Muhammad, respondent, was not even liable for the simple injury to the deceased and, thus, he has been acquitted of the charge under section 302 P.P.C. The acquittal of the respondents Nos. 2 to 8, on the charge under section 302 P.P.C. was justified, on account of the fact that it was a case of individual liability and, therefore, we do not find any merits in this Revision Petition and the same is hereby dismissed. Appeal partly accepted. S.A./K‑210/L