1974 P Cr (PLP)

3. The motive for offence as stated in the F. I. R. is that the appellants and the complainant party belonged to the same brotherhood. Saeed appellant wanted to marry Mst. Zubaida who resided in his house along with her parents. Soma one had told the appellants that Barkat Ali P. W. 15, father of Rehmat Ali P. W. had stated that he would not let this marriage take place. On this account the appellants bore a grudge against the complainant party.

4. According to the prosecution the occurrence took place in the following manner. On the day of occurrence at about' 4‑00 p.m. the appellants who resided in the neighbourhood of Rehmat Ali P. W. started abusing Barkat Ali P. W. as well as the women of his family. At that time, Rehmat All P. W. along with his cousin Iqbal P. W. was at his shop situated in Trunk Bazar. A boy called Naveed P. W. 19 came there and told them that the appellants were standing in the lane in front of their house and hurling filthy abuses at their women‑folk. On hearing this Rehmat Ali and Iqbal P. Ws. rushed to their house and found the appellants abusing their women‑folk. At that time, Muhammad Ikram (not produced), Masood Ahmad P. W. 18, Amjad Iqbal P. W. 16 and Muhammad Aslam P. W. 17 were also present there. These persons intervened and sent both the accused and the complainant parties to their respective houses requesting them not to quarrel any further. 10‑15 minutes later, at about 4‑30 p.m. Rehmat Ali P. W., along with Iqbal P. W. and Asif Jab pro?ceeded to his shop. Masood Ahmad Amjad Iqbal and Muhammad Alain P. Ws., along with Muhammad Ikram were still present in the lane. When these three had covered a distance of 10/15 paces from their house and had reached in front of the house, of Muhammad Shafi (not produced) Munawar and Waheed appellants armed with daggers and Sarwar and Saeed appellants armed with dungs came out from their house raising lalkaras. They followed there arid attacked them. Munawar and Waheed appellants inflicted injuries with their respective daggers to Asif Jan. Saeed appellant gave three dang blows to Rehmat Ali P. W. which hit him over the left eye‑brow, right hand finger acid left hand finger. Sarwar appellant caused injuries with his dang to Iqbal P. W. who sustained injuries on his head, left shoulder and back. Asif Jab fell down and started bleeding profu?sely. Thereafter the appellants ran away. Besides Rehmat Ali and Iqbal P. Ws. the occurrence was witnesses by Masood Ahmad, Amjad Iqbal, Muhammad Alam, Barkat Ali and Mst. Shamim Akhtar P. Ws. along with Muhammad Akram. Since Mst. Shamim Akhtar P. W. 14 had tried to rescue them, she sustained a dagger injury on her right hand caused by Munawar appellant. Asif Jab had become unconscious. He was taken in a tonga by Barkat Ali P. W. to the Civil Hospital. Rehmat Ali and Iqbal P. Ws. followed them to the hospital where they got themselves medically examined. In the meantime on having received information about the occurrence Muhammad Sadiq A. S.

1. P. W. arrived at the Civil Hospital and recorded the statement of Rehmat Ali P. W. Later, Asif Jan died to the hospital.

5. Sarwar appellant was arrested on the same day, and Saeed and Waheed appellants were arrested on the 3rd of July 1969, by Malik Abdul Asia A. S. I. P. W: 22, Munawar appellant had absconded and was arrested on the 9th of July 1969, by Murad Ali Shah S, I. P. W. 21.

6. The relevant recoveries In this case are blood‑stained sofa P. 1 recovered at the instance of Sarwar appellant and taken into possession vide memo Exh. P. C. dated the 6th of July 1969 the attesting witnesses being Muhammad Sarwar P. W. 11 and Muhammad Alam P. W. 17 Blood?stained sofa P. 2 recovered at the instance of Saeed appellant and taken into possession vide memo Exh. P. D. dated the 6th of July 1969. attesting witnesses being the same. Blood‑stained dagger P. 3 recovered at the instance of Waheed appellant and taken into possession vide memo Exh. P. E. dated the 6th of July 1969 attesting witnesses being the same. And dagger P. 4 recovered at the instance of Munawar appellant and taken into possession vide memo Exh. P, F. dated the 16th of July, 1969 attesting witnesses being Mukhtar Ahmad P. W. 9 and Muhammad Yousuf P. W. 10 Sofa P. 1 P. 2 and dagger P. 3 were despatched to the Chemicals Examiner on the 15th of July, 1969. According to his report (Exh. P. EE) these were stained with blood. Dagger P. 4 was despatched to the Chemical Examiner on the 26th of July 1969, His report (Exh. P.F.F,) was to the effect that it was not stained with blood. The scrapings from sotas P.

1. P. 2 and dagger P. 3 were sent to the serologist but no control was indicated in the report of the Serologist (Exh. P. GG). However, according to this report scrapings of one sofa were found to be stained with human blood whereas on the scrapings of other sofa and the dagger blood had disintegrated and their origin could not be determined.

7. Dr. Muhammad Zulfiqar P. W. conducted the post‑mortem examination on the dead body of Asif Jab at 9‑10 a.m. on the 2nd of July 1969, and found these injuries on his person: (i) stitched incised wound on the right side of lower jaw below the right ear: (ii) stitched incised wound on the right of the lower lip including the right cheek; (iii) stitched incised wound on the back of lower chest right side from the vertebral column (iv) stitched incised wound on the axilla, and (v) stitched incised wound on tile left tempro mandibular joint. Corresponding to injury No. (iii) walls were cut, pleurae bad ruptured, right lung was ruptured and cut and blood was present in the right chest cavity. In his opinion injury No (iii) was grievous whereas the rest were simple. All the injuries had been caused by sharp‑edged weapon. According to him the death was due to shock and haemorrhage because of injury No. (III) which was sufficient to cause death in the ordinary course of nature. In the cross‑examination he had stated that the deceased had chances of survival if the chest surgeon attending to him had opened the chest and had given the necessary medical aid by surgery. He also stated that it appeared to him that the doctor dealing with the case had not done any operation to give medical aid to the deceased. Earlier at 5‑30 p.m. on the Ist of July 1969 Asif Jah was medically examined while he was still alive at the hospital by Dr. Karam Hussain Sheikh P. W. who had found the aforementioned incised wounds, on his person. According to him injury No. (iii) was declared dangerous. In his cross‑examination he had stated that he did not administer any treatment of Asif Jah as the matter was being attended to by a surgical specialist while he conducted his medical examination. He also stated that the stitching of the wounds of Asif Jab wag done in his presence by the said Surgical Specialist. Dr. Karam Hussain Sheikh P. W. medically examined lqbal P. W. on the 1st of July, 1969, at. 5‑50 p.m. and found these injuries on his person; (i) contused wound skin deep on the top of head, (ii) abrasion on the back of wrist, (iii) contusion on the back of left forearm (iv) contusion of the cuter aspect of right chest, (v) complains of pain In chest, and (vi) contusion on the back and outer part of right chest. According to him all the injuries had been caused by blunt weapon and were declared simple. On the same at 6‑00 p.m. he medically examined Rehmat Ali P. W. and found these injuries on his person (i) contused wound skin deep on the outer side of right eyebrow, (ii) contused wound on palmer surface of left ring finger, and (M) abrasion on the back left of index finger. According to him all the injuries were caused by blunt weapon and were declared simple. On the same date at 10‑45 p.m he medically examined Mst. Shamim Akhtar P. W. and found these injuries on her person; (i) incised wound on the hipothenar eminence of right hand (ii) swelling on right side of forehead and (iii) abrasion on the back of right elbow joint. Injury No. (1) was caused by sharp‑edged weapon and the rest had been caused by blunt weapon. All the injuries were simple.

8. The prosecution has produced seven eye‑witnesses in this case. Rehmat Ali, Iqbal and Asst. Shamim Akhtar P. Ws. are injured. They are related to each other as well as Barkat Ali P. W. is the father of Rehmat Ali. P. W., Mst. Shamim Akhtar P. W. is the wife of Rehmat Ali P. W., Iqbal P. W. is maternal uncle of Asif Jah deceased and cousin of Rehmat Ali P. W., being the son of his maternal uncle. Amjad Iqbal, Muhammad Alam and Masood Ahmad P. Ws. are not related to the aforementioned P. Ws. and they are stated to be independent witnesses. Amjad Iqbal and Muhammad Alam P. Ws. are stated to be the residents of the same Mohallah although the location of their houses is not specifically indicated in the site plan. (Exh. PA/2). Masood Ahmad P. W. is a chance witness who is a resident of Mohallah Dharowal and had gone there in order to inquire after the health of his aunt. Since he is a chance witness, his testimony does not inspire much confidence and we ignore it. Learned counsel for the appellants his tried to argue that Amjad Iqbal and Muhammad Alam P. W. had also no business to be present at the place of occurrence because their houses had not been specifically shown in the site plan. But we do not agree with learned counsel. Even though their houses have not been specifically indicated in the site plan, the defence was not able to refute the stand taken by the prosecution that they were residents of the Mohallah. Learned counsel did not succeed in convincing us that they were residents of some other Mohallah but had come to the place of occurrence as chance witnesses. In fact there is nothing on the record which supports this argument of learned counsel. Learned counsel has also argued that the other eye‑witnesses namely, Rehmat Ali, Iqbal, Mst. Shamim Akhtar and Barkat Ali P. Ws. were interested witnesses and that, therefore, their testimony should be discarded.

9. In their statements before the trial Court Munawar and Sarwar appellants had stated that they were not present at the place of occurrence and that they had been involved on account of enmity. Waheed and Saeed appellants on the other hand in their statements before the trial Court admitted having participated in the occurrence but stated that Rehmat Ali and Iqbal P: Ws. armed with chhuri and stick respectively came to attack them in front of their house, that they had run from there but in the meantime Asif Jah who had arrived at the spot by chance received the injuries by accident that Waheed appellant snatched the chhuri from Rehmat Ali P. W. while Saeed appellant snatched the stick from Iqbal P. W., that they injured them in self‑defence and that Mst. Shamim Akhtar P. W. had received injury in an attempt to snatch the chhuri from her husband Rehmat Ali P. W. They had stated that Sarwar and Munawar appellants were not present there.

10. It is indeed correct that Rehmat Ali, Iqbal Mst. Shamim Akhtar y, and Barkat Ali P. Ws. are related to each other as well as to the deceased. It is also in evidence that the accused and the complainant parties were inimical to each other. But this does not mean that the testimony of the aforesaid P. Ws. should be discarded altogether when it is corroborated by the testimony of Amjad Iqbal and Muhammad Alam P. Ws. who are independent witnesses and stated to be the residents of the same Mohallah. However from a perusal of their testimony it appears that a sudden fight had broken out between the parties which started with the exchange of abuses. Iqbal P. W. had stated that he and Rehmat Ali P. W. were annoyed and provoked on reaching their house and on seeing their women being abused by the appellants. However, it is in evidence that Amjad Iqbal and Muhammad Alam P. Ws. intervened and pacified both the sides so much so that they even persuaded them to return to their houses. According to the prosecution the occurrence took place after 10‑15 minutes. But on the perusal of record we are of the considered opinion that it was a continuous occurrence. The appellants had the impression that Barkat Ali P. W., father of Rehmat Ali P. W., was standing in the way of the marriage of Saeed appellant with Mst. Zubaida. It is therefore, reasonably probable that they went to the house of Barkat Ali P. W., stood in the lane outside and started abusing him as well as his women?folk. On getting this information, it is probable that Rehmat Ali and Iqbal P. Ws. rushed to their house and Asif Jah deceased who was closely related to them and resided in the same Mohallah joined them. It is further probable that abuses were exchanged on both the sides but the parties were pacified by the other residents of the Mohallah like Muhammad Alam and Amjad Iqbal P. Ws. However the pacification was momentary. Some words of abuse may have been uttered which raised the heat of passion again and in the course of sudden quarrel Asif Jah was killed and Rehmat Ali, Iqbal and Mst. Shamim Akhtar, P. Ws. Were injured. Asif Jah deceased was obviously not directly connected with the motive. Therefore, it cannot be said that Munawar and Waheed appellants had pre‑planned his murder. Asif Jah deceased had sustained five incised injuries on his person which have been attributed to Munawar and Waheed appellants. According to the medical evidence out of these injuries only one was grievous whereas the rest were simple. According to the medical evidence had the deceased been given necessary medical aid, there were chances of his survival. Any way, it was this injury alone which proved fatal and led to the death of Asif Jah. We are, therefore, of the opinion that the case of Munawar and Waheed appellants is covered by Exception 4 to section 300, P. P. C. We accordingly alter their conviction from section 302/34, P. P. C. to section 304 (II), P. P. C. and sentence them to 10 years' R. 1. each. The conviction of Munawar appellant under section 324, P. P. C. for having caused injury to Mst. Shamim Akhtar P. W. as well as his sentence thereunder to three years' R.1. is maintained with the direction that his sentences under section 304 (II), P.P. C. and under section 324; P. P. C. shall run concurrently. The appeal of Munawar and Waheed appellants is accepted to this extent. The conviction of Saeed and Sarwar appellants under section 323, P. P. C, for having caused simple injuries to Rehmat Ali and Iqbal P. Ws. is maintained. As for the sentence thereunder of one year's R. I awarded to each of them by the trial court. It is reduced to the extent of already undergone by each of because they had remained jail throughout the trial which means for about two years. They are present on bail, their bail bonds shall stand discharged.

11. Reference for the confirmation of death sentence awarded to Munawar appellant by the Additional Sessions Judge, Sialkot is rejected.

12. In the light of the above discussion, since we have altered the conviction and sentences of Munawar and Waheed appellants and maintained the conviction of Saeed and Sarwar appellants reducing the sentence awarded to each of them we find no substance in Criminal Revision No. 1018 of 1970 which is dismissed.?????? order accordingly.