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Criminal Appeal No.911 of 1976, decided on 3rd June, 1985.
---Ss.302 & 300, Exception 4 & S.304, Part I--Offence, alteration of--Parties having strained relations entering into altercation and eventually attacking each other resulting in death of two persons one on complainant side and one on accused side besides multiple injuries to others on both sides--Each participant, held, was individually liable for his own act--Conviction under S.302 P.P.C. altered to that under S.304, Part I, P.P.C. in circumstances.
---S.323--Evidence, appreciation of--Injured person died before trial and as such could not be produced--Conviction under S.323, P.P.C. set aside, in circumstance.
----S.302--Benefit of doubt--Accused, admittedly, received no injury during occurrence and even according to prosecution version he took no part in main occurrence nor caused any injuries to deceased but appeared at a later stage allegedly armed with a gun and fired a single shot at prosecution witness who was given up as won over- Accused given benefit of doubt and acquitted, in circumstances.
Khalid Ranjha for Appellant.
Ch. Dil Muhammad Tarar for the State.
Dates of hearing: 21st, 27th, 28th May; 1st, 2nd and 3rd June, 1985.
Muhammad Gulzar, aged 40, armed with sota, Muhammad Aslam aged 20, armed with hatchet, and Taj Muhammad (age not recorded), armed with gun, all sons of Rahim Bakhsh, as well as Muhammad Yasin son of Ghulam Muhammad, aged 20, armed with sota, their nephew, have been convicted under section 302/34 P.P.C. for the murders of Allah Bakhsh alias Bakhshoo, aged 25, and Ahmad Ali , aged 22, both sons of Jamal Din, and each of them was sentenced to imprisonment for life on two counts plus fine of Rs.1,000 on each count or in default to undergo six months' rigorous imprisonment. They were also convicted on two counts under section 325/34 P.P.C. for causing injuries to Ashiq (not produced) and Mst.Suban (P.W.12) and each of them was sentenced to four years' rigorous imprisonment plus fine of Rs.500 or in default to undergo two months' rigorous imprisonment. They were likewise convicted under section 323/34 P.P.C. for causing simple injuries to Mst.Hanifan (not produced) and each of them was sentenced to three months' R.I. Each of them was further directed to pay compensation of Rs.500 to the heirs of the deceased or in default to undergo two months' R.I. each. The judgment had been passed against them on 29-7-1976 by the Additional Sessions Judge III Sahiwal and it is not stated therein as to whether the sentences of imprisonment will run concurrently. Therefore, it is to be considered that these are to run consecutively. The appeal of the convicts is being disposed of by this judgment.
2. The occurrence took place at Shamwela on 28-8-1973 in a street in Mauza Chak No.38/D at a distance of four miles from police station Depalpur District Sahiwal (now District Okara). Statement Ex.P.A. was made by Muhammad Hanif (P.W.11), brother of the two deceased on the spot at 10.45 p.m. on the same day and it was recorded by Abdul Sattar S.I. (P.W.14) who came there in connection with the investigation of the cross case in which Ata Muhammad brother o1 Muhammad Gulzar appellant had been murdered at the hands of the complainant party namely, Allah Bakhsh alias Bakhshoo deceased, Ahmad Ali deceased Talib and Ashiq, and the first informant in that case was Muhammad Gulzar appellant. On the basis of the aforesaid statement formal F . I . R . - (Ex . P . A . / 1) was registered at the police station on the same day at 11.15 p.m. by Muhammad Siddiq A.S.I. (P.W.5).
3. The motive for crime as stated in the F.I.R. is that 3/4 years prior to the present occurrence Muhammad Gulzar appellant tried to develop illicit relationship with Mst.Sardaran, niece of Muhammad Hanif (P.W.11) as well as the two deceased in the instant case. The matter came to be known to the family and the complainant side told Muhammad Gulzar appellant to desist from it whereupon their relations became strained. About one year before the present occurrence, there was a rumour in the village that Allah Bakhsh alias Bakhshoo deceased, brother of Muhammad Hanif P.W. had developed illicit relationship with the niece of Muhammad Gulzar appellant as well as Muhammad Aslam and Taj Muhammad appellants. This further strained the relations between the parties. It is stated that the occurrence took place in this background.
4. In the F.I.R. the occurrence is reported to have taken place in the following manner: On the fateful day Muhammad Hanif P.W. was going to village Hatti Pir Dee in order to enquire after the health of his mother. While he was on his way, he saw Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants armed as described above, beating his brothers Allah Bakhsh alias Bakhshoo and Ahmad Ali both deceased. Allah Bakhsh alias Bakhshoo deceased as well as Ahmad Ali deceased were causing injuries to them in retaliation with their sotas in the exercise of the right of self-defence. He also saw that Atta Muhammad, son of Rahim Bakhsh (deceased brother of Muhammad Gulzar, Muhammad Aslam and Taj Muhammad appellants) was lying on the ground. Ashiq (not produced) Mst.Suban (P.W.12) and Mst.Sardaran (P.W.13) were trying to rescue the two deceased in this case. But they were also given injuries by Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants with their respective weapons. When Mst.Hanifan (not produced because she died before the trial) advanced forward in order to rescue her husband Ashiq (not produced) she was also injured by Muhammad Aslam appellant with his hatchet. Thereafter when Mst.Hanifan (not produced) was taking away her husband Ashiq (not produced) by giving him support, Taj Muhammad 'appellant came from the other side armed with .12 bore gun. He fired at Ashiq (not produced) who fell down. The two deceased in this case in order to save their lives ran towards the house of Ashiq (not produced) but Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants etc. chased them and gave blows to them with their respective weapons until both the deceased were dead. Muhammad Hanif P.W. did not interfere out of fear and ran back toward Hatti Pir Dee. However, he returned to the scene of crime on hearing about the arrival of the police and he got his statement recorded on the spot before Muhammad Siddiq ASI P.W.
5. The prosecution has produced three eye-witness of the occurrence namely, Muhammad Hanif (P.W.11), brother of both the deceased, Mst.Suban (P.W.12) injured mother of the two deceased as well as Mst.Sardaran (P.W.13) Bhabi of the deceased as well as Mst.Hanifan, being wife of Talib, another brother. Two other injured witnesses were cited in the F.I.R. namely, Ashiq who was not produced and was given up as won over, whereas his wife Mst.Hanifan had not been produced because she died after the occurrence and before the trial. Thus, in this case besides the two deceased Mst.Suban P.W. was injured as well as Ashiq (not produced) and Mst.Hanifan (not produced) from the complainant side, whereas it is stated that from the accused side Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants had sustained injuries at the hands of the complainant side and on their side one person was killed namely, Atta Muhammad who happened to be the real brother of Muhammad Gulzar, Muhammad Aslam and Taj Muhammad appellants. It may be pointed out at this stage that a cross case had been filed at the instance of Muhammad Gulzar appellant against the complainant side namely, Allah Bakhsh alias Bakhshoo deceased, Ahmad Ali deceased, Talib and Ashiq for the murder of his brother Atta Muhammad and injuries to the accused side. In that case the Additional Sessions Judge Sahiwal vide his judgment dated 29-7-1976 acquitted Talib and Ashiq of the charge under section 302/34 P.P.C. as Allah Bakhsh alias Bakhshoo deceased and Ahmad Ali deceased had been murdered in this case. Private Criminal Revision No.229 of 1979 against the acquittal of Talib and Ashiq is pending before me-in Motion and I shall dispose it of separately by a different judgment.
6. All the appellants were arrested on 29-8-1973 i.e. on the following day by Abdul Sattar S.I. (P.W.14). From the spot was recovered a crime empty (not marked) and taken into possession vide Memo. Ex.P.F. dated 29-8-1973. The attesting witnesses are Muhammad Yusuf (P.W.8), Muhammad Ashiq son of Muhammad Shafi (P.W.9) and Abdul Sattar S.I. (P.W.14). At the instance of Muhammad Gulzar appellant was recovered blood-stained lathi (Ex.P.11) and taken into possession vide Memo. Ex.P.Q. At the instance of Muhammad Aslam appellant was recovered blood-stained hatchet (Ex.P.9) and was taken into possession vide Memo. Ex.P.N. At the instance of Taj Muhammad appellant was recovered .12 bore gun (Ex.P.17) and taken into possession vide Memo. Ex.P.R. At the instance of Muhammad Aslam appellant was recovered the licence of the said gun (Ex.P.18) which was taken into possession vide Memo. Ex.P.S. At the instance of Muhammad Yasin appellant was recovered bloodstained sota (Ex.P.10) and taken into possession vide Memo.Ex.P.O. All these recoveries were made on 29-8-1973 and these are attested by the same witnesses as stated above in the case of crime empty. There is on the record Fire-arms Expert's report to the effect that the crime empty picked up from the spot in this case had been fired through gun (Ex.P.17) recovered at the instance of Taj Muhammad appellant and there is also Serologist's report on the record to the effect that: scrappings from hatchet (Ex.P.9) recovered from Muhammad Aslam appellant, sota (Ex.P.10) recovered from Muhammad Yasin appellant and lathi (Ex.P.11) recovered from Muhammad Gulzar appellant were found to be stained with human blood. But it may be pointed out at this stage that both these reports have not been exhibited in this case although they are part of the record.
7. The appellants in their statements before the trial Court denied the prosecution version and disowned the recoveries. They gave their own version of the occurrence which is to the following effect: Muhammad Aslam appellant stated that only he, Muhammad Gulzar and Muhammad Yasin appellants were involved in the incident and Taj Muhammad appellant was not present at that time. He stated that they were attacked by the complainant side. On the day of occurrence they were coming to their chak from their shop at Depalpur. Muhammad Gulzar appellant went to the shop of Abdul Majid carpenter near the village mosque and when Muhammad Aslam and Muhammad Yasin appellants reached near the village mosque, Ahmad Ali deceased armed with a dang waylaid them stating as to why they were dragging him and his brothers Allah Bakhsh alias Bakhshoo deceased, Muhammad flanif P.W. and Talib in connection with the theft for the last one year and consequently an altercation took place between Ahmad Ali deceased on one side and Muhammad Aslam and Muhammad Yasin appellants on the other. Allah Bakhsh alias Bakhshoo deceased armed with a pistol and Talib armed with dang also arrived there. In the meantime his brother Atta Muhammad deceased of the cross case came out of the village mosque who was fired at by Allah Bakhsh alias Bakhshoo deceased through his pistol. Allah Bakhsh alias Bakhshoo deceased fired the second: shot at Muhammad Aslam appellant but it accidentally hit Ashiq of the complainant side. Muhammad Gulzar appellant then arrived at the spot from the shop of Abdul Majid carpenter on hearing their alarm. They were attacked by both the deceased as well as Talib and thereafter they acted in the exercise of their right of self-defence. At that time Taj Muhammad appellant was not present on the spot but he had been falsely implicated. The pistol of Allah Bakhsh alias Bakhshoo deceased was found to have been fired according to the report of the Fire-arms Expert which he produced in his defence as Ex.D.H. (attested copy of the report of the Fire-arms Expert in the cross case). The complainant party was the aggressor and that the accused party had' exercised their right of private defence. Muhammad Gulzar and Muhammad Yasin appellants gave identical versions, whereas Taj Muhammad appellant stated that he was not present on the spot and had not participated in the occurrence. He disowned recoveries and stated that he had been falsely implicated only because he was brother of Muhammad Gulzar and Muhammad Aslam appellants.
8. Dr. Muhammad Aslam (P.W.1) medically examined on 29-8-1973 at 3.30 p.m. Mst.Hanifan, wife of Ashiq (since deceased) and found on her person a lacerated wound skin deep on the top of middle of head and a contusion on the front of right wrist. Both the injuries were simple and caused by a blunt weapon within the duration of 24 hours.
On the same day thereafter he medically examined Mst.Suban (P.W.12) and found on her person the following injuries:-----
Whole of the right middle upper arm swollen and contused, humerus was fractured in the middle; contusion on the right cheek below right eye; and lacerated wound skin deep on the back and upper part of left fore-arm.
The injuries were caused with a blunt weapon within the duration of 24 hours. The first injury was grievous whereas the rest of them were simple.
On the same day thereafter he medically examined Ashiq (not produced) and found on his person fire-arm wounds of entrance 25 in number on the right thigh, contusion on the lower and front of right thigh, contusion on the middle and lateral part of right thigh contusion on the middle of right forearm, contusion on the upper part of right arm, contusion on the right side of chest, contusion on left side of head, contusion on right shoulder, contusion on left upper arm, whole of the lower middle part of left forearm swollen and contused, both the bones of forearm were fractured and a contusion on the front and medial part of left knee. The first injury was caused by firearm but the rest were caused by blunt weapon. The tenth injury was declared as grievous and the rest were simple. All the injuries had been caused within the duration of 24 hours.
On the same day he performed post-mortem examination at 11.00 a.m. on the dead-body of Ahmad Ali deceased and found on his person the following 15 injuries:-----
(1) Lacerated wound on the left back, of head, skull bone fractured.
(2) .Lacerated wound above injury No.1.
(3) Lacerated wound on the left side of head.
(4) Lacerated wound on left forehead.
(5) Lacerated wound on the left cheek. Maxilla bone was fractured.
(6) Lacerated wound on the middle and left side of mandible which was fractured.
(7) Incised wound on the right side of mandible which was fractured.
(8) Lacerated -wound on the right upper lip and the upper jaw was fractured.
(9) Lacerated wound on the right maxilla which was fractured.
(10) Lacerated wound skin deep and frontal bone was fractured on the right side.
(11) Abrasion on the left eye-brow.
(12) Lacerated wound on the right side of head.
(13) Lacerated wound behind the right ear.
(14) Contusion on the right hand underlying bone of the index finger was fractured.
(15) Incised wound on the back and lower part of left arm, humerus bone was fractured.
All the injuries were anti-mortem. Injuries Nos.1, 4, 5, 6, 7, 9, 10, 14 and 15 were grievous and rest were simple. Injuries No.7 and 15 were caused by sharp-edged weapon and the rest with blunt weapon. In his opinion the deceased died as a result of the said injuries which were sufficient to cause death in the ordinary course of nature. He died immediately due to shock and haemorrhage and multiple fractures. The post-mortem examination was performed 14 hours after death.
At 12.30 p.m. on the same day he performed post-mortem examination on the dead body of Allah Bakhsh alias Bakhshoo deceased and found the following ten injuries on his person:-
(1) Incised wound on the back left side of head.
(2) Lacerated wound scalp deep on the back centre of head.
(3) Lacerated wound on the left side of head.
(4) Incised wound on the right side of head.
(5) Lacerated wound behind the right ear, underlying bone was smashed and fractured.
(6) Lacerated wound on the right eye-brow, underlying: bone was fractured.
(7) Incised wound on the lower jaw left side underlying bone was fractured. .
(8) Multiple abrasions on the, right medial malolus.
(9) Lacerated wound on the left of chin, lower jaw was fractured.
(10) Lacerated wound on the centre of upper lip; upper jaw was fractured.
All the injuries were anti-mortem. Injuries Nos.1, 4 and 7 were caused by a sharp-edged weapon and the rest with blunt weapon. Injuries Nos.5, 6, 7, 9 and 10 were grievous, whereas the rest were simple. Skull bone had-multiple fractures and there was haemorrhage present under these fractures. In his opinion the deceased died of head and face injuries due to multiple fractures of skull, jaws etc. and these injuries were sufficient to cause death in the ordinary course of nature. Death resulted due to sudden shock, haemorrhage and multiple fractures. It occurred immediately after the injuries and post-mortem examination was performed sixteen hours after the death.
The same Medical Officer on 29-8-1973 performed post-mortem examination on the dead body of Atta Muhammad deceased on the accused's side in the cross-case at 10.00 a.m. He noted two injuries on the dead body out of which one was caused with firearm on the abdomen, while the other injury was caused with blunt weapon which was simple in nature. The firearm injury was sufficient to cause death in the ordinary course of nature. The death had resulted due to shock, haemorrhage and rupture of intestines etc. as a result of the first injury caused with firearm. The death occurred immediately after the receipt of the injuries and post-mortem examination was conducted sixteen hours after death.
He medically examined on the same day at 2.15 p.m. Muhammad Aslam appellant who had an abrasion on the central top of head caused with blunt weapon and it was simple injury.
On the same day he medically examined Muhammad Yasin appellant and found three injuries on his person, all simple caused with blunt weapon within the duration of 24 hours.
On the same day he medically examined Muhammad Gulzar appellant and found on his person an abrasion on the right eye-brow. It was simple injury caused with blunt weapon within the duration of 24 hours.
Thus from the medical evidence it appears that on the complainant side two persons had been murdered, namely, Allah Bakhsh alias Bakhshoo and Ahmad Ali, and three had received injuries of whom only Mst.Suban (P.W.12) has been produced whereas Ashiq had not been produced and-was given up as won over, and Mst.Hanifan had died a natural death before the trial. On the accused side Atta Muhammad had been killed, whereas Muhammad Aslam, Muhammad Yasin and Muhammad Gulzar appellants "had sustained simple injuries.
9. I have heard 'learned counsels for the parties and carefully perused the record. Learned counsel for the appellants read before me the cross-examination of the Investigating Officer ,namely, Abdul Sattar S.I. (P.W.14). He stated in the cross-examination that there was no mention of the picking up of crime empty from the spot in the inquest report or in the site plan. He also stated that it was correct that a case was registered at police station Depalpur on the same date at 8.30 p. m. (about 21/2 hours before the registration of the present case) on the statement of Muhammad Gulzar appellant for the murder of his brother Atta Muhammad against the complainant side in the same incident and in that case the two deceased as well as their other brother Talib were impleaded as accused persons. He slated that it was correct that no explanation in the F.I.R. of this case was given in respect of as to who had caused injuries to Atta Muhammad deceased of the cross case. No explanation was given by Mst.Suban P.W. or Mst.Sardaran P.W. or Mst.Hanifan or Ashiq, two of whom have been produced as P.Ws. in this case in their statements under section 161 Cr.P.C. as to how Atta Muhammad deceased had received injuries and at whose hands. He also stated that the cross version of the occurrence was found correct by him during the course of investigation and for that reason he challaned the members of the complainant party for the murder of Atta Muhammad deceased. He further stated that it was incorrect to suggest that no crime empty was secured from the spot. However, he stated that it was correct to suggest that he had taken into possession a pistol with a crime empty in it in the cross murder case and had sent the pistol as well as the crime empty to the Fire-arms Expert for comparison. He himself did not receive the report of the Fire-arms Expert in that case as he had been transferred after the occurrence but he knew as a fact that the said report of the Expert was positive. He also stated that it was correct to say that the two deceased in the instant case, were bad characters and were history- sheeters of police station Depalpur but he could not say the same about Muhammad Hanif P.W. the complainant in the instant case, as to whether he was under the police surveillance. Learned counsel also took me through the witnesses who had attested recoveries in the instant case. He pointed out by reading paragraph 17 of the judgment of the trial Court that with the exception of the recovery of human blood-stained earth as well as human blood-stained clothes of the appellants, the trial Court has disbelieved the recoveries. It may be pointed out that the public witnesses of all the recoveries in the instant case are Muhammad Yusuf (P.W.8) and Muhammad Ashiq son of Muhammad Shafi (P.W.9) and both these public witnesses who had attested the recoveries were declared hostile. However, the trial Court has relied upon their statements supporting the prosecution case in respect of only the recovery of human blood-stained earth from the spot found under the two deceased in the instant case. The trial Court also relied upon the recoveries of human blood-stained clothes removed from the persons of all the appellants by Abdul Sattar S.I. (P.W.14), for the reason that three appellants out of them namely, Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin were themselves injured in the same incident at the hp ads of the complainant side, whereas Taj Muhammad appellant although not injured but his human blood-stained clothes were stated to have been removed and taken into possession by the police. Although the public recovery witnesses Muhammad Yusuf and Muhammad Ashiq son of Muhammad Shafi P.Ws. were declared hostile and they had not been believed in this respect, the trial Court has relied upon the testimony of Abdul Sattar S.I.P.W. But so far as the recovery of crime empty from the spot is concerned, as well as the recoveries of human blood-stained lathi (Ex.P.11) from Muhammad Gulzar appellant, human blood-stained hatchet (Ex.P.9) from Muhammad Aslam appellant, gun (Ex.P.17) from Taj Muhammad appellant, licence of the aforesaid gun (Ex.P.18) from Muhammad Aslam appellant, and human blood-stained sota (Ex.P.10) from Muhammad Yasin appellant are concerned, the trial Court has not relied on these recoveries because the sole witness left who had attested the same was Abdul Sattar S.I. P.W. He has stated the reasons in paragraph 17 of the judgment. Whether the recoveries of crime weapons are relied upon or not, it is evident from the record that Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants had sustained injuries in the course of the same occurrence and Atta Muhammad deceased had died from their side. On the other hand, two persons died on the complainant side and Mst.Suban P.W., Ashiq (not produced) and Mst.Hanifan (not produced) were injured on the complainant side. The injuries on the persons of Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants clearly indicate that they had participated in the occurrence, although the recovery of human blood-stained clothes from the person of Taj Muhammad appellant may be doubtful as he was not injured in the course of the occurrence. The next point to be kept in mind is that the occurrence has not been denied by the accused side. They only give their own version of the same in which it is stated that Taj Muhammad appellant was not present on the spot.
Now I come to the eye-witness account in the instant case. The prosecution has produced three eye-witnesses of the occurrence namely, Muhammad Hanif, Mst.Suban and Mst.Sardaran P.Ws. Mst.Suban P.W. only is injured among them. Two other eye-witnesses cited namely, Ashiq and his wife Mst.Hanifan who are also stated to have received injuries in the course of the occurrence and Ashiq had received firearm injury, have not been produced. Ashiq was not produced and was given up for having been won over, whereas Mst.Hanifan was not produced because she died a natural death after the occurrence and before the trial. Muhammad Hanif P.W. made material changes in his statement before the trial Court from the one on the basis of which the F.I.R. had been recorded. He stated that when he reached the spot he found that Muhammad Gulzar, ,Muhammad Aslam and Muhammad Yasin appellants, armed as described above, as well as Atta Muhammad deceased on the accused side armed with dang, were injuring his brothers Allah Bakhsh alias Bakhshoo and Ahmad Ali deceased. He found Allah Bakhsh alias Bakhshoo deceased and Atta Muhammad deceased exchanging dang blows with each other, whereas Ashiq (not produced), Mst.Suban P.W. Mst.Sardaran P.W. and Mst.Hanifan (not produced) were trying to separate them. Then Muhammad Aslam appellant brought out a pistol from the fold of his chaddar and fired at Allah Bakhsh alias Bakhshoo deceased which did not hit him but accidentally hit Atta Muhammad deceased. Then he stated that Muhammad Gulzar and Muhammad Yasin appellants gave dang blows to Mst.Suban P.W. and when Ashiq (not produced) proceeded ahead to rescue the ladies, he was injured by Muhammad Gulzar and Muhammad Yasin appellants. Mst Sardaran P.W. was be laboured by Muhammad Gulzar appellant with his dang. (She has no injury or her person). Mst.Hanifan (not produced) tried to help her husband Ashiq (not produced) to get up who was lying injured on the ground, but she was given blows by the wrong side of hatchet by Muhammad Aslam appellant. Thereafter' Taj Muhammad appellant arrived at the spot and fired through his gun and thus injured Ashiq therewith. He tried to intervene but Taj Muhammac appellant threatened him and he stayed back. Muhammad Aslam appellant gave hatchet blows to-both Allah Bakhsh alias Bakhshoo and Ahmad Ali deceased who were also injured by Muhammad Gulzar appellant and Muhammad Yasin appellant with their respective weapons After the two deceased had succumbed to their injuries on the spot he then left for the police station for lodging the report where the S. I. told him to proceed to the spot where he would also arrive and record his statement. He gave the same motive in his statement before the trial Court which had been given in the F.I.R. but added that a year prior to the present occurrence a theft was committed in the house of the accused party which reported to the police and suspected him, Allah Bakhsh alias Bakhshoo deceased, his brother Talib etc. as thieves. They were accordingly suspected by the police which later on found them innocent and released them. So this was also a cause of grievance so far as the accused party was concerned. In the cross-examination he stated that there was a cross F.I.R. in the instant case lodged at the instance of Muhammad Gulzar appellant and the allegation is against his brother Talib as well as the two deceased that they caused the death of Atta Muhammad deceased by firing at him with a pistol and that Talib gave him dang blows on the head and that also that Ahmad Ali deceased along with Talib had caused injuries to Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants. He stated that it was correct that Allah Bakhsh alias Bakhshoo deceased was sentenced to death 7/8 years prior to the present occurrence for causing the murder of his sister but he was acquitted by the High Court at the appeal stage. He was also involved in a theft case before the present occurrence-but was acquitted. Then there is statement of Mst.Suban P.W. who is mother of the two deceased in the instant case. The statement which she made before the trial Court also contains material discrepancies as compared with the statement which she had made before the police (Ex.D.F.). She was also confronted with each and every sentence of her statement in the cross-examination. The version given by her is that they were present in their house when they heard alarm and went out of the house. They found that her son Ahmad Ali deceased was being injured by Atta Muhammad deceased, Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants. Atta Muhammad deceased, Muhammad Gulzar and Muhammad Yasin appellants were armed with Sotas, while Muhammad Aslam appellant carried a hatchet. Ashiq (not produced) and his wife Mst. hanifan (not produced) also arrived there in order to rescue them. Allah Bakhsh alias Bakhshoo deceased brought out a Sota with him. He inflicted a Sota blow to Atta Muhammad deceased and then he wanted to give second blow to Atta Muhammad deceased when Muhammad Aslam appellant brought out a. pistol from his Dubb and fired at Allah Bakhsh alias Bakhshoo deceased who was saved but accidentally the shot hit Atta Muhammad deceased. When she interfered to rescue her sons, Muhammad Gulzar and Muhammad Yasin appellants gave her injuries with their Dangs and caused fracture of her right arm. The fracture of arm was caused by Muhammad Gulzar appellant. In the cross-examination she stated that Allah Bakhsh alias Bakhshoo and Ahmad Ali deceased were being injured when she reached the spot. Then she volunteered that Allah Bakhsh alias Bakhshoo deceased had come out of the house and had arrived at the spot before she reached there and on her arrival at the spot she found him being injured. She stated before the C.M. that her right arm was fractured by the Dang blow of Muhammad Gulzar appellant but when confronted it was found that it was not so recorded specifically although it was stated that injuries were caused to her by Muhammad Gulzar and Muhammad Yasin appellants as well as Muhammad Aslam appellant. So far as the statement of Mst. Sardaran P.W. is concerned, she does not mention the presence of Muhammad Hanif P.W. on the spot but states that she was given a Dang blow by Muhammad Gulzar appellant when she got aside. Learned counsel points out that she also made material changes in her statement at the trial stage and was confronted at every step in the cross- examination. There was no injury found on her person.
I have gone through the record carefully and I have also heard arguments of learned counsel for the parties. I have already pointed out that there is a cross-case in this case because one member of the accused party namely, Atta Muhammad "vas murdered at the hands of the complainant side in this case. In the cross-case, the case of the prosecution itself is that Atta Muhammad deceased was fired at through the pistol carried by Allah Bakhsh alias Bakhshoo deceased in the instant case and that Ashiq from the complainant side as well as Talib inflicted Dang blows to Atta Muhammad deceased.
It may be pointed out that Talib had not received any injuries even in the cross-case and he has not been cited as an eye-witness in the present case. Thus, it is doubtful if he was present on the spot at the time of the occurrence. However, Ashiq was cited as an eye-witness in the present case but has been given up as won over and he has received injuries at the hands of the accused side including one fire-arm injury alleged to have been caused to him by Taj Muhammad appellant. But I may point out at this stage that Ashiq and the accused party had entered into a compromise and in the cross-case the accused party in the present case did not press their charge as against him. Probably as a result of the compromise he has declined to appear as an eye-witness for the complainant side in the instant case. Let me now consider as to what is the nature of the injuries on the accused side and the complainant side in the present case. The injuries of the accused side are taken first: Atta Muhammad deceased received two injuries, one of firearm and the other with blunt weapon simple in nature. The firearm injury which was attributed to: Allah Bakhsh alias Bakhshoo deceased proved fatal and he died as a result thereof. Then Muhammad Aslam appellant has one injury on his person simple in nature caused with blunt weapon. Muhammad Yasin appellant' has three injuries on his person caused with blunt weapon and simple in nature and Muhammad Gulzar appellant has one injury on his person caused with blunt weapon and simple in nature. Taj Muhammad appellant on the accused side is not injured. Even according to the version of the prosecution he did not participate in the main occurrence and did not cause any injuries to the deceased. He appeared only at a later stage stated to be armed with gun and' is alleged to have fired only a shot at Ashiq with whom the accused a party had made a compromise. Since Taj Muhammad appellant is not injured in the instant case he may have not participated in the occurrence. It is stated that gun was recovered at his instance which matched with the crime empty picked up from the spot according to the Firearms Expert's report. But the licence of the said gun was in the name of Muhammad Aslam appellant and was recovered from him. Anyway, the recoveries in the instant case particularly of the weapons of offence, have been rightly disbelieved by the trial Court. Since Taj Muhammad appellant was not injured, in. my view he might have not participated in the occurrence; in the same way as Talib on the complainant side in the cross-case had not received any injuries and, therefore, he also did not participate in the occurrence and was accordingly given the benefit of doubt in the cross-case and acquitted. Thus, if we were to make the total of the injuries received by the accused side, it comes to five simple injuries caused with blunt weapon plus two injuries on tile person of Atta Muhammad deceased out of which one is simple and the total comes to seven injuries in all. Now let the complainant side be taken up. Ahmad Ali deceased had fifteen injuries on his person caused with sharp-edged as well as blunt weapons. Allah Bakhsh alias Bakhshoo deceased had ten injuries on his person caused with sharp-edged as well as blunt weapons. Ashiq (not produced) had eleven injuries on his person out of which one was caused with firearm and the rest with blunt weapon. His one injury caused with blunt weapon was declared grievous and the rest were simple. Since he has not been produced by the prosecution, there is no need to consider his case further. Then Mst.Suban P.W. had received three injuries caused with blunt weapon out of which one was grievous and the rest were declared simple. Mst. Hanifan (died before trial) had two injuries on her person caused with blunt weapon and simple in nature. Thus, the total number of injuries received by the complainant side comes to 41 out of which 16 were stated to be grievous injuries. Therefore, if the injuries chart is kept in view, then in this fight in which the accused party was armed with blunt weapons, sharp-edged weapon as well as firearm and the complainant side probably armed with pistol and sticks participated and the number of injuries indicate that the accused side definitely had an advantage over the complainant side. The ocular evidence on both the sides comes forth from witnesses who are highly interested and, therefore, I have to apply the principle of sifting of evidence. Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants are injured and, therefore, their participation in the occurrence is established. Similarly, Atta Muhammad deceased had died in the course of the occurrence on the accused side and, therefore, his participation too in the occurrence is established. However, Taj Muhammad appellant is not injured and consequently in my view his participation in the occurrence is doubtful. On the complainant side it is evident that Allah Bakhsh alias Bakhshoo deceased had participated in the occurrence as he died in the course of the same at the hands of the accused party. The position of Ahmad Ali deceased is identical. Ashiq has not been produced but he is injured and, therefore, he did participate in the occurrence. Talib had been cited as an accused person in the cross-case but he had received no injuries and, therefore, did not participate in the occurrence. Muhammad Hanif P.W. who is the complainant in the present case and the first informant is also not injured and he too might have not been present at the time of the occurrence. Even if he was present, he came at a later stage as the perusal of the F.I.R. discloses, because when he appears to have seen the occurrence Atta Muhammad deceased had already fallen dead. Anyway, he makes material changes in his subsequent statement before the trial Court, and it is proper only to accept that part of his testimony if at all which could be considered relevant from the point of view of sifting of evidence. Then Mst.Suban P.W. and Mst.Hanifan (died before trial) were present on the spot as they both are injured. Mst.Sardaran P.W. could have been present on the spot as she was a natural witness of the occurrence like Mst.Suban P.W. but she is not injured. From the application of principle of sifting of evidence the picture which emerges before me of this fight is that there was a background of strained relations between the parties and the theft which had occurred in the house of the accused side, could have been the immediate cause of the occurrence. The accused party had accused the complainant side for having committed the theft and the police had also called the complainant side in connection with that case. Therefore, it is reasonably probable that somehow or the other an altercation took place between the two sides in which from the accused side were involved Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants plus Atta Muhammad deceased on one side and on the other side were Allah Bakhsh alias Bakhshoo deceased and Ahmad Ali deceased. Ashiq possibly might have joined later but it is no use to consider the case of Ashiq as he had already entered into a compromise with the other side. Out of these two deceased Allah Bakhsh alias Bakhshoo deceased probably was armed with pistol. In the course of the altercation Atta Muhammad deceased, according to the prosecution case in the cross-case, died as a result of the pistol shot fired at him by Allah Bakhsh alias Bakhshoo deceased. It is reasonably probable that Ahmad Ali deceased was armed with a stick or a dang and might have given a blow on the head of Atta Muhammad deceased which is the other simple injury on his person. But then Muhammad Gulzar appellant and Muhammad Yasin appellant who were armed with sotas and Muhammad Aslam appellant who was armed with hatchet caused injuries to Allah Bakhsh alias Bakhshoo deceased as well as Ahmad Ali deceased and when on hearing the alarm the womenfolk came out, Mst.Suban P.W. and Mst.Hanifan who died before the trial received injuries at the hands of Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants. Thus, in my view the case of the appellants is covered by Exception 4 to section 300 P.P.C. as it had resulted from a sudden fight in the course of which Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants received simple injuries at the hands of the complainant side and Atta Muhammad deceased was killed at the hands of the complainant side. But at the hands of Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants were killed Allah Bakhsh alias Bakhshoo deceased as well as Ahmad Ali deceased and injuries were caused to Mst.Suban P.W. as well as Mst.Hanifan who died before trial. Thus each of these three appellants namely, Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin would be liable for their own acts. Since I have given a finding that it was a sudden fight between the parties and the case of the appellants is covered by Exception 4 to section 300 P.P.C. the conviction of the appellants under section 302/34 P.P.C. as well as sentence awarded to them thereunder were not proper and are accordingly set aside. Instead I convict each of the following namely, Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants under section 304, Part I, P.P.C. read with section 34 P.P.C. for causing the death of Allah Bakhsh alias Bakhshoo deceased and Ahmad Ali deceased and sentence each of them to undergo ten years' rigorous imprisonment plus fine of Rs.500 each or in default to undergo three months rigorous imprisonment each. Their conviction under section 325/34 P.P.C. as well as sentence awarded thereunder for causing injuries to Mst. Suban P.W. only are maintained. Mst. Sardaran P.W. did not receive any injury and, therefore, she is not mentioned. Similarly Ashiq had not been produced and, therefore, he is not mentioned and the case of Mst. Hanifan is not considered as she died before trial and has not been produced. Their conviction under section 323/34 P.P.C. and the sentence awarded thereunder for it causing injuries to Mst. Hanifan are set aside as Mst. Hanifan had died before the trial and has not been produced. If the fine under section 304, Part I, read with section 34 P.P.C. is realized from Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants it should be paid as compensation to the heirs of the two deceased in equal shares in the instant case. The trial Court while awarding sentence to them has not mentioned as to whether the sentences would run concurrently or consecutively. But I order that the sentences of imprisonment awarded to Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants shall run concurrently. The Jail authorities are also directed to grant them the benefit of the provisions of section 382-B Cr.P.C. at the time of computation of the sentences of imprisonment awarded to Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants. The appeal of Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants is accepted to this extent. They are at present on bail. They should surrender themselves before the police and rearrested in order to undergo the remaining part of their sentence. In the light of the above discussion so far as Taj Muhammad appellant is concerned, in my view the prosecution has not succeeded in establishing its case as against him beyond any shadow of doubt. Therefore, his conviction as well as sentences awarded to him are hereby set aside and he is accordingly given the benefit of doubt. He is acquitted. He is on bail. His bail bonds shall stand discharged. The appeal of Taj Muhammad appellant only is accepted.
S. G. D./M-343/L Order accordingly.
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