1988 PLP 880 (MLD)

KHIZAR HAYAT, J.

Salamat (23), his brother Hanif (26), his uncle Mehr Din (70) with his sons Makhu (27) and Akbar (18), were tried by learned Additional Sessions Judge, Kasur, for committing offences of rioting, attempted murder and murder. Learned trial Court vide judgment dated 14‑6‑1984 acquitted Mehr Din of all the charges but convicted and sentenced the rest under section 307/34, P.P.C. to 3 years' R.I. and a fine of Rs. 1,000 each or in default to undergo one year's R.I. each, and under section 302/34, P.P.C. Hanif and Makhu have been sentenced to death and a fine of Rs.5,000 each or in default to undergo 2 years' R.I. each on two counts while Salamat and Akbar have been awarded lesser penalty of imprisonment for life and a fine of Rs. 5,000 each or in default thereof to 2 years' R.I. each for they according to learned Court, were in the morning of their life and also appeared to have committed the crime under the influence of their elder brothers Hanif and Makhu. The fine if realised is directed to be paid to the legal heirs of the deceased persons as compensation. Feeling aggrieved thereby the convicts have jointly filed appeal (Cr.A.No. 322/&1) challenging their convictions and sentences and the trial Court has submitted proceedings to this Court under section 37.4, Cr.P.C. (M.R.No. 147/84) for confirming the death sentences awarded to Hanif and Makhu, appellants. Sadiq Ali, complainant, has filed a private revision (Cr.R.No. 602/84) praying that sentence of imprisonment for life awarded to Salamat and Akbar, appellants be enhanced to death. We propose to dispose of these three connected matters by this consolidated judgment.

2. The occurrence took place on the morning of 13‑10‑1982 at about 7.15 a.m. in Qasba Mustafabad, tehsil and district Kasur, at a distance of 1 1/2 furlongs from the local police station. Sadiq AA complainant, the injured P.Ws. and the deceased were removed to the local duspital immediately. S.I. Altaf Ahmad (P.W.14) learning about the occurrence also reached there at 8.30 a.m., and recorded complainant's statement Exh‑PC on the basis of which formal FIR Exh‑PC/1 was drawn up by M.H.C. Muhammad Yunas (P.W.3).

3. The prosecution case as disclosed at the trial was that both parties belonged to Saqqa tribe and lived in Qasba Mustafabad. Their houses are situated in the same street, at a distance of 10/12 karams from each other. On the night preceding the day of occurrence (12‑10‑1982) at Isha prayers time, Sher Bagga, brother of both the deceased persons and of complainant Sadiq Ali (P.W.11), quarrelled with Sheeda, brother of Makhu and Akbar (appellants) and son of Mehr Din (since acquitted), while playing. Sheeda gave beating to Sher 13agga who went home weeping and complained to his father Bhag Din (P.W.12; against Shecda whereupon Bhag Din P.W. with his sons Sadiq Ali (P.W.11), Roshan Din and Khushi Muhammad (both deceased) went to the house of Salamat (appellant) for lodging a protest but Salamat and Akbar (appellants; abused them whereupon they exchanged Danda blows. Khushi Muhammad and Roshan Din (deceased) injured Salamat and Akbar (appellants), Haji Muhammad Tufail (P.W.8) and Latif Councillor brought about a compromise between them, however tire appellants threatened the complainant party that they would take revenge from there. On the following morning, at fateful time, Sadiq Ali (complainant) and his brother Khushi Muhammad (deceased) were going to the fields for bringing fodder. When they reached Chowk Islam Councillor their brother Roshan Din who lived separate from them had met them. In the 4 meartime, Salamat, Makhu and Hanif (appellants) armed with Chhuris and Mehr Din (since acquitted) armed with hatchet came there. Mehr Din (since acquitted) raised Lalkara exhorting his companions to kill them. The complainant party raised hue and cry which attracted Bashir (P.W.13) a cousin of the complainant and Rahmat P.W. (not produced), to the spot. Khushi Muhammad (deceased) ran for life to his house (towards south of Chowk Islam Councillor'] while Roshan Din (deceased) ran towards north. Salamat and Hanif (appellants; chased Khushi Muhammad, while Makhu, Akbar (appellants) and Mehr Din (acquitted accused) chased Roshan Din (deceased). Khushi Muhammad was overtaken in front of his house and was given two Chhuri blows at his head and Haul. by Salamat (appellant) and one in the back by Hanif (appellant) as a result of which he fell down. Thereafter Salamat and Hanif ran towards Roshan Din (deceased) who had been surrounded by Mehr Din (since acquitted), Akbar and Makhu (appellants) in front of the house of Latif Councillor. Hanif (appellant) struck a blow on left arm of Roshan Din with Chhuri and Roshan Din gave him 2/3 Danda blows to same his, life Makhu (appellant) then: gave him two successive Chhuri blowes hitting it, right flank and right chest as a result of which he fell down. At this Bagh Din (P.W.12) came running to the spot whom Akber (Appellant) injured with a Phahora. When Sadiq Ali (P.W.11) intervened, Makhu (appellant) inflicted him injury on his left bicep with a Chhuri. Thereafter all the assailants disappeared with their weapons. Rahmat and Bashir P.Ws. took the two deceased as well as the injured witnesses to the local hospital where Bhag Din and Sadiq Ali P.Ws were examined and admitted for treatment but Roshan Din and Khushi Muhammad were declared as dead. S.I. Altaf Ahmad (P.W.14) reaching civil hospital, Mustafabad, recorded Sadiq Ali's statement Exh‑PC at 8.30 a.m., as indicated above, and sent it to Police Station Mustafabad for formal registration of the FIR and thus after preparing injury statements Exs‑PV/PW and inquest reports Exs‑PX/PY of both the deceased he despatched the dead bodies under police escort for post‑mortem examination.

4. On 13‑10‑1982 at 4 p.m., Dr. Muhammad Anwer (P.W.10) conducted post‑mortem examination on the dead body of Khushi Muhammad and found the following injuries on it: (1) An incised wound on left parietal bone area size 4 cm 1 1/2 cm x scalp deep. (2) An incised wound on back of left chest lower area size 1 cm x 1/2 cm. (3) An incised wound on right flank of abdomen size 3 cm x 1 cm. Portion of intestine is protruding out of the wound. The correspondent cuts of injuries are present on Bunvan, Saluka and Chadder wearing. On dissection of thorax, left 11th intercostal space was found cut and the large intestine was perforated and cut through and through.

5. Roshan Din's dead body was post‑mortemed at 2.30 p.m., and following injuries were noted thereon: (1) A stab wound on outer side of left arm in lower half 5 cm, x 1 cm x muscle deep. (2) A stab wound on front of left chest 4 cm left to mid line size 3 cm x 1 cm. (3) A stab wound on left line area, size 3 cm x 1 cm. On dissection of thorax, the doctor found 5th left rib in cartileginous portion as cut. In the opinion of the doctor, both the deceased had died of shock and haemorrhage due to their injuries mentioned as injuries No.2 and 3 caused with sharp‑edged weapon within 6‑10 hours duration resulting in immediate death. These injuries were sufficient to cause death in ordinary course of nature.

6. Bhag Din (P.W.12) and Sadiq Ali (complainant) were medically examined at 9.10 and 9.20 p.m., respectively. The doctor noted 14 injuries on the person of Bhag Din, all caused with blunt weapon, which included two grievous hurt involving fracture of right forearm at two places, while Sadiq Ali had one incised wound on the inner side of left arm 2 cm x 1/2 cm x muscle deep caused with sharp‑edged weapon and simple in nature. Injuries of both of them were of 14 hours duration.

7. S.I. Altaf Ahmad (P.W.14) arrested Hanif, Salamat, Akbar (appellants) and Mehr Din (acquitted accused) on 13‑10‑1.982 and Makhu (appellant) on 15-10‑1982. Hanif, Salamat and Akbar were in injured state at the time of their arrest. Dr. Muhammad Anwer (P.W.10) examined them on 14‑10‑1982 at 1230 p.m. He found 9 simple injuries on the person of Hanif (appellant) i.e., 5 abrasions, 3 contusions on arms and legs and a lacerated wound 2 1/2 cm x 1/2 cm x scalp deep on left parietal bone area, caused with blunt weapon within 30 hours duration; two injuries were found on the person of Akbar i.e., a stitched wound on parietal bone 3 cm x 1/4 cm and a contused swelling on left hand both caused with blunt weapon and the first injury was caused within, 40 hours duration and the second of 30 hours duration; and stitched wound on right forearm of Salamat (appellant) within duration of 40 hours and simple in nature.

8. On 17‑10‑1982, Salamat (appellant) got recovered blood‑stained Chhuri P.8 from Chhattan of door of his Kotha which was seized under memo Exh‑PF. Likewise, on the same day, Hanif (appellant) got recovered blood‑stained Chhuri P9 from his residential Kotha which was seized under memo Exh‑PG. Both the memos are attested by Hakim Ali (P.W.7) and SI Altaf Ahmad (P.W.14). On 18 10‑1982, Makhu (appellant) got recovered blood‑stained Chhuri P.10 from the Chhattan of door of his Kotha and Akbar (appellant) got recovered phahora P.12, not blood‑stained, from the courtyard of his residential house. They were secured vide memoes Exs‑PH and PK, respectively, attested by Bashir (P.W.13) ,and S.I. Altaf Ahmad (P.W.14). According to Chemical Examiner's reports Exs‑PBB to PEE and those of Serologist Exs‑PFF and PJJ, the earth collected from the spot and the afore‑mentioned Chhuris were found besmeared with human blood. After completing investigations the accused were challaned to Court.

9. At the trial, 14 witnesses appeared on behalf of prosecution. Sadiq Ali (P.W.11) and Bhag Din (P.W.12), are injured witnesses who narrated the occurrence and also about the motive. Haji Muhammad Tufail (P.W.8) supported them on the point of motive. while Bashir (P.W.13) supported their version regarding main occurrence. Hakim Ali (P.W.7) and Bashir (P.W.13) proved recoveries and Dr. Muhammad Anwer (P.W.10) stated that both the deceased had died of violence. He also proved injuries of Bhag Din and Sadiq Ali P.Ws. and of Hanif, Salamat and Akbar (appellants). SI Altaf Ahmad (P.W.14) told different stages of investigation carried out by him.

10. When examined under section 342 Cr.P.C., Mehr Din (acquitted accused) and Akbar (appellant) denied their presence and participation in the occurrence while Hanif and Makhu (appellants) adopted the statement made by Salamat (appellant) wherein he in the following words: "I am innocent. In fact on the night preceding the day of occurrence, Sher Bhagga and Sheeda son of Mehr Din were quarrelling where Hanif accused separated them whereupon Sher Baggha gave abuses to Hanif accused, then Hanif accused gave slaps to him. Sher Bagga had told the complainant party that Hanif accused had given him beating whereupon the complainant party made ‑a plan to take the revenge of beating of Hanif and Sheeda accused to Sher Bagga, Sadiq complainant armed with Chhuri, Bhag P.W. armed with Dang, Roshan Din and Khushi Muhammad deceased armed with Dangs came to my house at about 7 a.m., on 13‑10‑1982 and raised Lalkara that they had come to take the revenge of beating given by Hanif accused and Sheeda to Sher Bagha. Hanif accused was dragged by the complainant party from the house in the street where he was given beating by Roshan Din and Khushi Muhammad deceased. Sadiq complainant tried to inflict Chhuri blow to my brother Hanif accused but Hanif accused caught hold the Chhuri from Sadiq P.W. I intervened to save the life of my brother Hanif. Akbar accused, my cousin brother who had come there on hearing the noise too intervened. If caught hold Dang from the complainant party, Akbar also caught hold Dang from Bhag P.W. The complainant party besides injuring Hanif accused also injured me and Akbar in his self‑defence, the complainant party also received injuries to (from) Hanif, myself and Akbar. We have been falsely implicated in this case by the complainant party in connivance; with the police of the area and under the influence of Haji Tufail P.W. and Latif Councillor. Mehr Dih and Makhu accused were not present at that time at the scene of the occurrence. Myself and Hanif and Akbar accused also received injuries on the day of occurrence at 7 a.m., at the hands of the complainant party. They did not produce any evidence in defence.

11. Learned trial Court on consideration of the material on record acquitted Mehr Din as only proverbial Lalkara was attributed to him and convicted the rest believing ocular evidence, motive and the recoveries against them and sentenced them, as indicated above.

12. It is contended on behalf of the appellants that the prosecution story is improbable; that the eye‑witnesses are close relations of the deceased who exaggerated and improved upon their statements recorded during the investigation, therefore, they are not reliable; that the motive lay on complainant's side, because their boy Sher Bagga (son of Bhag Din P.W.) was beaten up by Sheeda the accused party and the defence version that complainant party in order to avenge Sher Bagga's beating had attacked the appellant, who in exercise of their right of private defence caused injuries to the deceased, being equally probable deserves to be accepted in preference to the prosecution story. Learned State counsel assisted by learned counsel for the complainant defended the impugned judgment and submitted that the appellants have been rightly conceived for the offences of murder and murderous assault and that because [words missing] and Makhu ; appellants), therefore, they too, deserve capital punishment to their sentence may be enhanced to death. We have considered the contention of the parties and perused the record carefully.

13. Scope of discussion is narrowed down by the fact that occurrence is admitted and the participation of the both the deceased and Bhag Din and Sadi Ali P.Ws. from complainant side and that of Salamat, Akbar and Hani (appellants) from the accused side is established as they bear injuries on their persons but each party has given its own version describing the opposite party as aggressor. We have, therefore, considered both versions by placing them in juxtaposition and having reviewed the entire evidence on record formed the view that complainant party was not aggressor for the reasons; firstly, because the deceased persons on the night preceding the morning of occurrence, had beaten Salamat and Akbar appellants, therefore, the latter had grievance to take revenge from former and it appears to us that seeing the deceased and Sadiq complainant passing near their house at the fateful time, the appellants ignited with the feelings of taking revenge, attached them with Chhuns. The complainant party ran for life in different directions but were chased and overtaken by the appellants at considerable distance and then Khushi Muhammad and Roshan Din deceased were given fatal blows while Sadiq PW. was inflicted simple hurt. Secondly, the Investigating Officer has not found any blood in front of the house of the appellants rather he collected blood from in front of the houses of Bhag Din and Latif Councillor which are situated on opposite sides from the "Chowk Islam Councillor" which shows that the occurrence had not taken place in front of the house of the appellants as asserted by them. To the contrary it lends support to the prosecution story, according to which the complainant party hearing Lalkara of the appellants ran fhelter skelter and the appellants chased them and fatally wounded them at the places from where tine blood was collected. Thirdly, had the complainant party gone to the house of the appellants to, attack them then after they dragged Hanif out in the street, they would have inflicted many more and extensive injuries to him than what he had actually 1, suffered as according to the defence story assailants at that time carried 3 dangs and one Chhuri. It is noteworthy that none from the appellants side has received any injury, with sharp‑edged weapon although Sadiq Ali (Complainant) according 1 to them at that time was carrying a Chhuri. Fourthly, it is hard to believe that Salamat alone having snatched chhuri i from Sadiq Ali P.W. was able to cause fatal injuries first to Khushi Mohammad (deceased) and then to Roshan Din (deceased) who allegedly weilded sticks at; that time. Fifthly the defence plea appears to be afterthought as the appellants,, neither filed a private complaint based on these facts nor produced any defence witness in support of their plea. We are, therefore, constrained to hold that defence version is without any foundation and we feel no hesitation in rejecting the same.

14. On the other hand, it is clearly deducible from the evidence on record that the appellant:, seeing Khushi and Roshan Din deceased) and their brother Sadiq Ali P.W. passing near their house ignited with feeling of revenge due to preceding night's incident had launched attack on them, who apprehending danger to them lives started running in different directions, and the appellants chased them by over taking Kushi Muhammad and Roshan Din (deceased) caused them Chhuri blows on chest/abdomen region resulting in their death.' Their intention to kill the deceased in furtherance of common intention, in they circumstances, is thus quite manifest. As Akbar appellant did not inflict any injury to the deceased, persons during the occurrence though he was carrying a Pahora, therefore, he cannot be bracketed with others and by way of abundant caution we would hold that he did not share intention to kill the deceased, with other appellants. He had caused injuries only to Bhag Din PW who had arrived after the deceased had been dealt fatal blows, so act of injuring Bhag Din P.W. 1 was his individual act. Consequently we find that learned trial Court rightly held Hanif, Salamat and Makhu (appellants) guilty under section 302/34, P.P.C. on I '‑two counts and we uphold the same. Their conviction under section 307/34, , P.P.C. for the injuries caused to Bhag Din is, however set aside and they are acquitted of the charge. Likewise conviction and sentence of Akbar appellant under section 302/34, P.P.C. is hereby set aside and he is acquitted. His' conviction under section 307/34, P.P.C. is altered to one under section 325, P.P.C. because none of the injuries of Bhag Din P.W. has been found as dangerous tot life.

15. This brings, us to tire question of sentence. Akbar is sentenced under section 325, P.P.C. to imprisonment for the period already undergone, which comes to more than 3‑l/2 years as it would amply meet the ends of justice. As for' Salamat appellant we agree with the learned total Court that he had acted under, influence of his elder brother, therefore he was entitled to the concession of lesser; penalty. As for Hanif and' Makhu, we find that there is no mitigating circumstance in their favour, so death sentence awarded to them, in the circumstances, is appropriate and is hereby confirmed.

17. In the result the appeal is partly allowed in terms as indicated above. Death sentence of Hanif and Makhu appellants is confirmed. Akbar appellant if not required to be detained in any other case shall be released forthwith. Crl. Rev. No.602/84 is dismissed. SA/H‑52/L. Appeal partly accepted.