1987 PLP 284 (SCMR)

JAVID IQBAL, J.‑‑Criminal Petition for Leave to Appeal No.91 of 1983 has been filed by Muhammad Yaqoob, Sharafat Ali, Muhammad Yousuf and Liaqat Ali petitioners all brothers as well as Ghulam Hussain petitioner who is their maternal uncle against their convictions and sentences passed by a Division Bench of the Lahore High Court Lahore vide judgment, dated 15th January, 1983. Criminal Petition for Leave to Appeal No. 73 of 1983 has been filed by Muhammad Hussain complainant petitioner against the acquittal of Muhammad Younis acquitted co‑accused as well as for enhancement of sentences of those petitioners who have been awarded life imprisonment. Since both these petitions arise out of the same judgment these are being heard and disposed of together. All the five petitioners plus Muhammad Younis acquitted co‑accused were tried by the Additional Sessions Judge Lahore and were convicted as well as sentenced as follows: Under section 302/149, P.P.C. on two counts for committing double murder of Muhammad Sadiq and Muhammad Tufail, two brothers. Under section 323/149, P.P.C. on four counts for causing injuries to Munir Ahmad, Mst. Sardaran, Din Muhammad and Mst. Natho and under section 449/149, P.P.C. as well as under section 148, P.P.C. For the murder of Muhammad Sadiq deceased Muhammad Yaqoob petitioner was sentenced to death plus fine of Rs.1,000 or in default to undergo R.I. for six months while the other five were sentenced to imprisonment for life each plus fine of Rs.1,000 each or in default to undergo six months' R.I. each. For the murder of Muhammad Tufail deceased Muhammad Yousuf and Sharafat Ali petitioners were sentenced to death plus a fine of Rs.1,000 each or in default to undergo six months R.I. each while the remaining four were sentenced to imprisonment for life and a fine of Rs.1,000 each or in default to undergo six months' R.I. each. All the six were sentenced to one year's R.I. each plus fine of Rs.500 each or in default to undergo three months' R.I. each on four counts under section 323/149, P.P.C. for causing injuries to Munir Ahmad, Mst. Sardaran, Din Muhammad and Mst. Natho. All of them were sentenced to imprisonment for life under section 449/149, P.P.C. Then all of them were further convicted under section 148, P.P.C. and each of them was sentenced to three years' R.I. plus fine of Rs.500 or in default to undergo three months' R.I. The trial Judge did not pass any order about the payment of compensation. On appeal the learned Division Bench of the Lahore High Court Lahore acquitted Muhammad Younis co‑accused and altered the sentences of Sharafat Ali petitioner from death to life imprisonment on two counts. His sentences of imprisonment were ordered to run concurrently. The convictions as well as sentences awarded to the others were maintained. Their substantive sentences were ordered to run concurrently. The fine imposed under section 302/149, P.P.C. on two‑counts and under section 148, P.P.C. was ordered to be paid to the legal heirs of the two deceased as compensation. Similarly the sentences of fine imposed under section 323/149, P.P.C. on four counts were ordered to be paid to the four injured P.Ws. in equal shares. The benefit of section 382‑B, Cr.P.C. was given to Sharafat Ali, Liaqat Ali and Ghulam Hussain petitioners and the death sentence awarded to Muhammad Yaqoob as well as Muhammad Yousuf petitioners were confirmed. There are two deceased in the instant case i.e. Muhammad Tufail and Muhammad Sadiq who are both brothers. There are four injured persons namely, Din Muhammad P.W.12, Mst. Natho (not produced), Mst. Sardaran P.W.3 and Muhammad Munir P.W.2. Three of the accused namely Sharafat Ali, Muhammad Yousuf and Liaqat Ali petitioners had also sustained minor injuries in the course of the occurrence. The occurrence took place at 8 a.m. on 5th September, 1978 which was Eid day in Mohallah Salamat Pura, Thokar, Niaz Baig, Lahore. F.I.R. was lodged on the same day by Muhammad Hussain P.W.1, at 9‑45 a.m. All the members of the accused party were arrested on 6th September 1978. Human blood‑stained Kurta of Muhammad Yaqoob petitioner, human blood‑stained shirt of Sharafat All petitioner and human blood‑stained Kurta of Liaqat Ali petitioner were taken into possession. At the instance of the members of the accused party the following weapons of offence were recovered: Human blood‑stained Tesi from Muhammad Younis acquitted co‑accused, human blood‑stained hatchet from Sharafat Ali petitioner, human blood‑stained Sota from Liaqat Ali petitioner and human blood‑stained Chhuri from Muhammad Yaqoob petitioner. Chhuries were also recovered from Muhammad Yousuf and Ghulam Hussain petitioners. The‑eye‑witnesses in this case are Muhammad Hussain P.W.1 brother of the two deceased, Muhammad Munir P.W.2 also a brother of the two deceased, Mst. Sardaran P.W.3 injured widow of Muhammad Sadiq deceased and Din Muhammad injured P.W.12 father of the two deceased. According to the medical evidence Muhammad Yousuf accused had one injury on his person caused by a sharp‑edged weapon and simple in nature. Liaqat Ali petitioner had two injuries on his person caused by a blunt weapon and simple in nature and Sharafat Ali petitioner also had two injuries caused by sharp‑edged weapon and simple in nature. On the complainant side Muhammad Sadiq deceased had nine injuries on his person out of which eight had been caused with blunt weapon and one by sharp‑edged weapon. Muhammad Tufail deceased had eight injuries on his person out of which four were caused by sharp‑edged weapon and four by blunt weapon. Din Muhammad P.W. had one injury on his person, caused by blunt weapon and simple nature. Mst. Sardaran P.h. had to injuries on her person caused by blunt weapon and simple in nature. Mst. Natho had one injury on her person caused by blunt weapon and simple in nature and Muhammad Munir P.W. had one injury on his person caused by blunt weapon and simple in nature. The motive for crime is that Mst. Kubran sister of the four petitioners‑brothers and niece of Ghulam Hussain petitioner was married to Muhammad Riaz a brother of the two deceased 11 year prior to the occurrence. Their relations became strained and Mst. Kubran left her husband and came to live with her parents. Two months before the occurrence Muhammad Hussain P.W. had gone to the house of the accused party for the return of Mst. Kubran but they did not permit her to go. A month before the present occurrence Muhammad Yaqub petitioner and the aforesaid Muhammad Riaz quarrelled with each other for which Muhammad Yaqub petitioner got a case registered under section 324, P.P.C. against Muhammad Riaz and Muhammad Tufail deceased. On the day of occurrence Sharafal Ali petitioner abused Muhammad Sadiq deceased who returned the abuse. Sharafat Ali petitioner then left holding out a threat and shortly came back with his brothers and maternal‑uncle carrying weapons of offence in order to avenge the insult. The occurrence is stated to have started in the following manner: Muhammad Hussain P.W. was present at the sweets shop of his brother Muhammad Sadiq deceased and his brother Muhammad Tufail deceased was present at his own meat shop located close by. Sharafat Ali petitioner passed in front of their shops and abused them. Muhammad Sadiq deceased returned the abuse. Sharafat Ali petitioner then left threatening that he would soon come back to teach them a lesson. After about 10/15 minutes the members of the accused party armed with weapons came from their houses to the shop of Muhammad Sadiq deceased. In the meantime Muhammad Riaz P.W. had reached there. Muhammad Yousuf petitioner gave Chhuri blow to Muhammad Sadiq deceased on his back while Liaqat Ali petitioner gave Sota blow to Muhammad Sadiq deceased who ran towards his house. Muhammad Hussain P.W. and his brother Muhammad Riaz P.W. were unable to render any help as they were empty handed. They ran towards the house of one Muhammad Anwar when the accused party threatened them. Muhammad Tufail deceased came out of his shop on hearing the alarm. Muhammad Yousuf petitioner inflicted Chhuri blow to him in his abdomen, while Sharafat Ali petitioner inflicted hatchet blow on his head. Thus, Muhammad Tufail deceased fell down. Muhammad Yousuf petitioner inflicted more blows to Muhammad Tufail deceased with Chhuri after he had fallen down. Then Muhammad Munir P.W. reached the spot who tried to rescue Muhammad Tufail deceased but Muhammad Yousuf petitioner gave a blow to Muhammad Munir P.W. Muhammad Yaqoob, Liaqat Ali and Ghulam Hussain petitioners alongwith Muhammad Younis acquitted co‑accused gave chase to Muhammad Sadiq deceased who entered his house and chained the door from inside. But these four broke open the door as well as window and entered the room and thus committed the murder of Muhammad Sadiq deceased inside his house. At that time Din Muhammad P.W. father of the deceased, Mst. Natho mother of the deceased and Mst. Sardaran P.W. wife of Muhammad Sadiq deceased were present there and all of them received injuries at the hands of these members of the accused party. Thereafter the accused party ran away from the spot. Muhammad Sadiq had died in Kotha after receiving the injuries. Muhammad Tufail deceased was in a serious condition. He was removed to the hospital but he died there on 17th September, 1978. Learned counsel for the petitioners in Criminal Petition No.91 of 1983 argued that only three of the injured petitioners namely Sharafat Ali, Muhammad Yousuf and Liaquat Ali were present on the spot who had been attacked by the two deceased and other members of the complainant party, and that in the exercise of their right of self‑defence they inflicted injuries to the other side. In fact these three petitioners admitted their presence on the spot while the other did not admit their presence. Learned counsel vehemently argued that it was at the most a case of sudden fight and that the defence version was the version. He argued that Sharafat Ali petitioner had been caused injuries in front of the shop of Ashiq barber and that the shop of Ashiq barber was situated in between the sweet meat shop and the house of Muhammad Sadiq deceased. According to the learned counsel it has been admitted by some of the P.Ws. that blood was found in front of the shop of Ashiq barber. Learned counsel submitted that if Muhammad Sadiq deceased while running towards his house from his shop had to pass in front of the shop of Ashiq barber then there should have been a trail of blood which was not so in the present case. Thus, the main argument of the learned counsel is that the version put up by the defence side had not been properly examined by the Courts below. On the other hand learned counsel for the petitioner in Criminal Petition No.73 of 1983 argued that the defence version had been rejected by the trial Court as well as the appellate Court for the reason that the dead body of Muhammad Sadiq deceased was found in a Kotha of his house the door as well as window of which was broken and furthermore the women folk as' well as father of Muhammad Sadiq deceased who were present in the house had sustained injuries at the hands of the accused party. According to the learned counsel the petitioner had chased Muhammad Sadiq deceased to his house and, therefore, it could not be said that it was a sudden fight. He, therefore, argued that Muhammad Younis co‑accused should have not been acquitted and furthermore sentence of those petitioners who have been awarded life imprisonment should be enhanced to death. We have carefully considered the arguments of learned counsel for both the sides and gone through the important portions of the impugned judgment as well as the statements of some of the P.Ws. Likewise we have carefully studied the site plan and the medical evidence. The findings of the trial Court as well as of the appellate Court are that the occurrence did not start from the shop of Ashiq barber and that the defence version as put forth by Sharafat Ali, Muhammad Yousuf and Liaqat Ali petitioners was not believable. After considering both the prosecution version as well as the defence version carefully the Courts below arrived at the conclusion that the defence version as set up by the petitioners was fabricated one. It was for this reasons that the defence version was rejected. However, the appellate Court for reason given in the impugned judgment and by applying the principles of abundant caution gave the benefit of doubt to Muhammad Younis and acquitted him. After a careful examination of the record and hearing arguments of the learned counsel for the parties we are of the view that the appellate Court has arrived at its conclusion after a very proper and careful appraisal of the evidence in the present case which calls for no interference. In the light of the above discussion we do not find any substance in either of these two petitions which are accordingly dismissed. M.I. Petition dismissed.