1989 PLP 4860 (MLD)

RASHID AZIZ KHAN, J‑‑The appellants Muhammad Munir, Muhammad Latif and Muhammad Yaqoob sons of Gulzar Ahmad and Gulzar Ahmad son of Abdul Ghafoor, were sent up for trial by Police Station Saddar Chistian for offences under section 302/307/34 P.P.C. The learned trial Court vide its judgment dated 23rd April, 1988, convicted and sentenced appellants Munir and Latif to death on two counts and to pay a fine of Rs.10,000 each in default, to suffer six months' rigorous imprisonment. Appellants Gulzar and Yaqbob were convicted and sentenced to life imprisonment and to pay a fine of Rs.10,000, or in default to suffer further rigorous imprisonment for six months each. All of them were further found convicted, and sentenced to life imprisonment under section 307 P.P.C. They were also sentenced to one year rigorous imprisonment each for an offence under section 323 P.P.C. The convicts have appealed. The case is also before us for the confirmation of death sentences awarded to Muhammad Latif and Munir appellants. Both the matters will be disposed of by this judgment.

2. It has been brought to our notice that appellant Gulzar Ahmad has since died in jail, therefore, his appeal abates.

3. The prosecution story, in brief as given by Muhammad Bashir, PW, was that he had married one Mst. Khurshid Bibi, daughter of Gulzar Ahmad about 15 years ago. Out of the wedlock, a daughter, namely Mst. Bilqees Bibi and a son, namely, Muhammad Asif were born. When Bilqees Bibi was two years of age and Muhammad, Asif was five days old, wife of the first informant died. He did not marry and brought up the children himself. When Mst. Bilqees Bibi grew up, in laws of the first informant wanted her hand in marriage, but he (complainant) refused. About 10/12 days before the occurrence, Mst. Hamidan, mother‑in‑law of the first informant, with Muhammad Munir came to the first informant and took Mst. Bilqees to their village on the pretext that she would meet her relations. On 25th of April, 1987. Muhammad Irshad, a nephew of the first informant, told him that Gulzar Ahmad had married Mst. Bilqees with Muhammad Riaz, a grandson of Gulzar Ahmad. The First informant went to his Bradri and asked for the return of his daughter Mst. Bilqees. The Bradri had to assemble at the house of Gulzar Ahmad on 27th April, 1987, therefore, the first informant along with Mubarik Ali, Muhammad Irshad, Shaukat Ali, Abdul Razaque, Ramzan and Abdul Ghani went to the house of Gulzar Ahmad. When they reached near the house of Gulzar Ahmad at about 6.00 p.m. Gulzar Ahmad armed with Sota, Muhammad Latif and Muhammad Munir, sons of Gulzar Ahmad, armed with Chhuris, and Muhammad Yaqoob son of Gulzar Ahmad, armed with Sota were present there. They attacked them on the Lalkara of Gulzar Ahmad. Muhammad Munir gave Chnuri blows to Muhammad Irshad who fell down, Muhammad Latif with Chhuri gave blows to Shaukat Ali who also fell down. Thereafter, Muhammad Munir gave Chhuri blows to Muhammad Ramzan a brother‑in‑law of the first informant, who also fell down. Muhammad Yaqoob gave Sota blows to Mubarik Ali, brother of the first informant. Muhammad Latif again gave a Chhuri blow to Abdul Razaque. Gulzar Ahmad gave Soti blows to the first informant. The commotion attracted the witnesses at the spot, whereafter, the assailants ran away from the spot.

4. F.I.R. Exh.PJ was lodged by Muhammad Bashir PW‑6 on 27th of April, 1987 at 7.00 p.m. at Police Station Saddar Chishtian which was recorded by Muhammad Nawaz S.H.O. PW‑

9. Distance between the place of occurrence and the spot is six kilometres.

5. After the registration of the case, Muhammad Nawaz Sub‑Inspector PW 9 came to the spot, and prepared the inquest report Exh. PQ in respect of Shaukat and of Irshad Exh.PR. He also prepared the injury statement of P.W. Bashir Ahmad and of Razaque PU/1 and Ramzan PU/2 and Mubarik Exh. PU/3. Thereafter, he sent the dead bodies for autopsy. Blood‑stained earth from underneath the dead bodies of Irshad and Shaukat was secured vide Memos. Exhs.PK and PL respectively. He recorded the statements of witnesses at the spot under section 161 Cr.P.C. He arrested all the accused on 28th April, 1987, and interrogated them.

6. On 3rd of May, 1987 Muhammad Latif appellant while in custody led to the recovery of blood‑stained Chhuri P.6 from near his house, which was secured vide Memo Exh. PM

7. On the same day, appellant Munir led to the recovery of Chhuri P7 from his residential house, which was secured vide Memo. Exh.PN. Appellant Muhammad Yaqoob got recovered a Sota P.8 and Gulzar appellant led to the recovery of Sota P.9 from his house. After the usual investigations, the accused were challaned.

8. Dr. Muhammad Ashraf, Medical Officer, Chishtian on 28th of April, 1987 conducted the post‑mortem examination on the dead body of Shaukat Ali, and noticed the following injuries: (1) A stabbed wound in the spigestrial region. (2) A stabbed wound on left side of chest obliquely 5 cm lateral to the left nipple. In the opinion of the doctor, the death had occurred due to shock and haemorrhage by rupture of left lung and liver. Both the injuries were individually fatal, and sufficient to cause death.

9. The same doctor on the same day at 8.30 a.m. also conducted the post- mortem examination on the dead body of Muhammad Irshad, and found the following injuries: (1) A stab wound on left side of chest. (2) A stab wound medial to injury No.

1. In the opinion of the doctor, death had occurred due to haemorrhage and shock caused by both the injuries. Injuries were ante‑mortem caused by sharp‑edged weapon.

10. On 27th of April, 1987 at 10.45 p.m., the same doctor also medically examined Muhammad Bashir and found the following injuries: (a) A contusion at the back of right hand. (2) An abrasion on left middle finger. (3) A contusion on back of skull. Injuries were simple in nature caused by blunt weapon.

11. On the same day the same doctor medically examined Mubarik Ali, and noticed the following injuries: (1) Lacerated wound on right thumb. (2) He was complaining pain on left hip joint and on testees. Injuries were simple in nature caused by blunt weapon The same doctor also examined Abdul Razaque and Found the following injury on his person: (1) An incised wound on left cheek with the measurement of 3 x 2 cm. The injury was declared simple caused by sharp‑edged weapon. Oil the same day, the doctor also medically examined Muhammad Ramzan and the following injuries were noticed: (1) An incised wound 5 x 3 cm on the left upper arm. (2) An incised wound 2 cm x 3 cm on the left side of the chest. (3) An incised wound 2 x 1‑1/2 cm on the left side of abdomen. All these injuries were declared simple caused with sharp‑edged weapon

14. The prosecution, in all, produced nine witnesses. Dr. Muhammad Ashraf who conducted the post-mortem examination of deceased, and had also medically examined the injured, appeared as PW‑

5. Muhammad Arshad Javed PW‑1 prepared the site‑plan Exhs. PA and PA/1 of the place of occurrence. Madad Ali Constable PW‑2 escorted the dead bodies to the mortuary.

15. The eye‑witness account was furnished by Muhammad Bashir, Ramzan and Barkat Ullah PWs 6, 7 and 8, respectively. The case was investigated by Muhammad Nawaz PW‑

9. The learned District Attorney gave up Rehmat Ali, Muhammad Iqbal, Abdul Razaque, Mubarik Ali, Muhammad Siddique and Shahid Rafique PWs as unnecessary, and tendered in evidence the report of the Chemical Examiner and that of the Serologist, and closed the prosecution case.

16. At the conclusion of the prosecution evidence, the appellants were examined under section 342 Cr.P.C., wherein they refuted the prosecution evidence, and pleaded innocence. In answer to a question they stated that on tile fateful day, Latif rind Yaqoob appellants were not present. Gulzar was lying ill his house, when the four injured PWs alongwith the deceased and the first informant came there, and forcibly tried to drag Mst. Bilqees, daughter of the first informant, with Mst. Sughran, a sister of Munir and Latif appellants. Gulzar Ahmad appellant tried to intervene, but was given blows by the assailants. Thereafter Munir appellant in exercise of the right of private defence, caused injuries to the other side, which resulted in the death of two persons. All the appellants admitted in their statements under section 342, Cr.P.C. that Mst. Bilqees was married to Muhammad Riaz, but it was with her consent. Appellants did not choose to appear in their defence except Munir who reiterated his statement under section 342 Cr.P.C. Appellants also produced Mst. Sughran in their defence as DW‑2, who supported the defence version.

17. It was contended by the learned counsel for the appellants that the prosecution story on the face of it did not inspire confidence. Contends that the appellants had no motive whatsoever to commit the murders of two persons and to cause injuries to four others. Contends that Gulzar Ahmad had himself invited them to his house as Punchayat for an amicable settlement. Submits that the occurrence must have taken place under different circumstances, but the prosecution was not coming forth with clean hands, therefore, benefit be given to the appellants. The contentions of the learned counsel for the appellants have been controverted by learned counsel for the State.

18. We have heard the learned counsel at length, and perused the record. As far as, time, place and the weapon with which both the deceased were done to death are concerned, the same has been accepted by the defence as well, therefore, we hold that both the deceased were done to death on 27th of April, 1987 at 6.00 p.m. outside tile house of the appellants.

19. So far as the main occurrence is concerned, we have the statements of Muhammad Bashir Muhammad Ramzan and Barkat Ullah PWs 6, 7 and 8, respectively. Muhammad Bashir is the father of Mst. Bilqees Bibi, who, according to him, was married to one Riaz without his knowledge and consent. The witnesses have given a detailed account of the occurrence, which inspires confidence. It was in evidence that there was no previous enmity with any of the appellants and the appellants had invited tile witnesses in their house for the settlement of the dispute with regard to the marriage of Mst, Bilqees. All tile eye witnesses admitted that they had come to the house, of the appellants when the other members of the Punchayat had not yet reached. In these circumstances, when other members of the Punchayat had not reached, the exchange of hot words could not be ruled out, because there was a dispute between them. Therefore, we hold that the eye‑witnesses were present at the spot and had witnessed the occurrence, and can safely be relied upon except with regard to the origin of fight. There is some force in the argument of the learned counsel for the appellants that had they any ill‑will or motive to cause harm to the complainant side they would have never agreed to the holding of Punchayat at their house. It is in the evidence that the deceased and the witnesses came to the house of the appellants alone without the members of the Punchayat. In these circumstances, without the members of the Punchayat tile exchange of hot words between the parties cannot be ruled out, because there was a dispute, as agreed by both the sides, between them, but the prosecution is silent on this aspect. We noticed that the appellants produced Mst. Sughran, DW‑2 in their defence, who stated that an attempt was made to abduct her which was resisted and thereafter the occurrence took place. Even otherwise, also, it is not natural that the appellant would invite Punchayat to their house and without even exchange of single word would attack them and commit the murders of two of them. There must have been exchange of hot words which flared up the parties, which resulted in present occurrence.

20. For what has been discussed above, we hold that the origin of the fight is shrouded in mystry. It appears to be a sudden affair, for which each assailant would be responsible for his own act. Therefore, while disposing of the appeals, we maintain the sentences of Latif and Munir, but convert the same from death to life imprisonment. Appellant Yaqoob is not alleged to have caused any injury to the deceased, therefore, he is acquitted under section 302 P.P.C. Convictions and sentences of appellants Latif and Munir under section 307 P.P.C. are maintained. Appellant Yaqoob is also given the benefit of doubt and is acquitted of the offence under section 307 P.P.C. However, the sentences under section 323 P.P.C. of the appellants are maintained. Sentences of fine of the appellants are also maintained. Sentences of appellants Latif and Munir under section 302/307 P.P.C. would run concurrently. Appeal is disposed of in the terms stated above. Death sentence is not confirmed. S.A./G‑275/L. Death sentence not confirmed.