SHAMEEM HUSSAIN KADRI, J.-On 13th October, 1970, Muhammad Malik left his house at 9 a. m. With an information to the members of his family that he was leaving for Satiana. He did not return upto 15th October 1970 despite the fact that on 16th October, 1970, he had to appear as an accused person along with his sons in a case under section 325, P. P. C. Before the Tehsildar, Jaranwala, at Satiana. The first information in this case is the son of the deceased Muhammad Younas (P. W. 18), who appeared in the Court of the Tehsildar where Muhammad Ismail complainant along with Maqsood, the injured person in a case under section 325, P. P. C. Were present. Muhammad Younas got worried and on reaching the village he informed about the absence of his father to his relations, who searched for him but could not get any clue. During this attempt the search party came in contact with Rehmat Ali (P. W. 12) at about 3-30 p. m. On 13th October, 1970, near Chak No. 84-G.B. On the same day Jamal Din (P. W. 11) met Muhammad Malik in Chak No. 86-G. B. One Muhammad Ali who has not been produced at the trial, also saw Muhammad Malik, when the former was going to his house. He is resident of Chak No. 85-G. B. Muhammad Younas went to the Police Station Satiana on 18th October, 1970, and lodged the F. I. R. At 5 p. m,, which was recorded by Muhammad Aslam A. S. I. Who has not been produced at the trial. Muhammad Younas suspected about 13 persons, including Talib Ali appellant, Muhammad Ayub, Muhammad Ismail, Muhammad Yaqoob, Muhammad Abdullah and Maqsood Ahmad, who were tried by the learned Additional Sessions Judge, Lyallpur (now Faisalabad) under sections 201, 120-B and 302/34, P. P. C. He convicted the appellant under section 325, P. P. C. Arid sentenced him to seven years R. I. And acquitted the rest vide judgment dated 17th June, 1972.
2. A case was registered at Police Station under section 364, P. P. C. And the motive attributed by Muhammad Younas was that on account of B. D.
Elections his father opposed Muhammad Sadiq and Muhammad Ismail and his Jat brotherhood opposed him. Muhammad Sadiq won the election. On 25th June, 1970, Muhammad Ismail got a case registered against Muhammad Younas and his two brothers Muhammad Iqbal Abdullah and the deceased Muhammad Malik under section 325, P. P. C. And all of them were challaned. There was theft of some property of Ayub and the first informant, his brothers and father were suspected of the crime.
3. On 24th October, 1970, Talib Ali while in police custody dug a place near the cattle shed of Muhammad Ayub and from underneath the heap of manure he got recovered the dead body of Muhammad Malik. There was a cloth wrapped around the neck of the deceased. Cycle (P. 1), pair of shoes (P. 5) and a cotton bag (P. 6) were taken into possession by Fazal Muhammad, Station House Officer (P. W. 19) vide Memo Exh. P. B., attested by Ch. Abdul Hussain (P. W. 8), Sardar Sher Ahmad (P. W. 7), Taj Din and Khurshid Ahmad. The latter two were given up.
On the following day Talib Ali appellant got recovered from the roof of cattle-shed of Ayub blood- stained sota (P-7) affixed with a sua, which was taken into possession vide Memo Exh. P. F.
Recovery was effected by Fatal Muhammad, S. H. O. (P. W. 19) and the memo was attested by Ch. Abdul Hussain (P. W. 8), who was produced but Taj Din and Khurshid Ahmad were not examined.
4. The scrappings from the dang were sent . To the Chemical Examiner who vide his report (Exh. P.
N.) found the same blood-stained. The Serologist vide report (Ex. P. O.) opined that the articles including the scrappings from the stick were stained with human blood.
5. Dr. Shahid Hussain Bokhari (P. W. 1) performed autopsy on the dead body of Muhamriad Malik on 24th October, 1970, at 3-15 p. m. And found six contused wounds on different parts of his body, one on the face and the other on his head in temporal region, the seventh injury was the result of strangulation. In the opinion of the Doctor Muhammad Malik died due to asphyxia on account of strangulation caused by Injury No. 1. One of the other injuries was grievous, rest were simple, but all were caused by blunt weapon.
6. On the application of Fazal Muhammad, Station House Officer, who was the Investigating Officer, the confessional statement of Talib Ali was recorded by . Sardar Sher Ahmad Khan, M. I. C., which is Exh. P. L/2, after complying with the formalities mentioned in Ex. P. L/1. In answer to a question what he wanted to say Talib Ali replied that he was a tenant of Ayub and was receiving 1/4th share of batal. About 2J months before fodder cutter machine of Taj was stolen. He reported against him.
Muhammad Younas caught him and Ayub got him bailed out. He, Ayub, his brotherin-law .And Muhammad Siddique were returning home after landing from the Bus at Dalowal. Ayub said had he killed some one they would not have cared spending money as against the allegation of theft of fodder cutting machine. When they reached home they tried to effect compromise. A month ago he, Abdullah, Ayub, Maqsood, Yaqoob and Ismail were present in the baithak of Alif Din, where .He was also present. Ayub said either to kill Malik or Abdullah. Ayub, Ismail and Abdullah repeated this and they said that they will help him and will take the responsibility, Alif Din told them to go out of baithak, and discuss such matters at some other place. They returned to their homes.
7. Fifteen/sixteen days ago a nephew of Hafiz, who is the Imam of the mosque of the village came there and took Malik along with him. He and Maqsood were cutting fodder when Malik and nephew of Hafiz passed by Talib and his companion returned to the Dera and informed Ayub that Malik had gone out. Ayub said that when Malik returns kill him, they will bear the burden. He and Maqsood again went towards the road side, but they did not find Malik. When they went for the third time they saw Malik coming alone from a distance. Ayub and Ismail went into the sugar-cane field. He and Maqsood went behind the Sarkanda. When Malik passed in front of them Talib Ali gave him a stick blow on his head. He fell down from the cycle. Maqsood strangulated Malik with his turban.
Ayub and Ismail ran and Talib Ali threw the stick towards them. Ayub, Ismail and Maqsood took the dead body of Malik into the sugarcane field and Talib Ali put the cycle in the sugarcane field. They went to their Dera and at about 8/9 p. m. Talib Ali, Ayub, Ismail, Maqsood and Abdullah went to dispose of the dead body. They took the dead body and the cycle and the dead body of Malik to the dera, dug a pit behind the kotha of Ayub, threw the cycle and the dead body of Malik along with other articles into it and buried them. Thereafter they put manure on it and returned to the village.
The case was registered 5/6 days thereafter. Talib Ali was caught by the police, who narrated the story. He also went to Ibrahim and apprised him of the situation, He produced him before the police and the police got the recovery of the dead body effected in the presence of the Magistrate from the place which he showed to them. He stated that his statement was correct and was not made under coercion. Exh. P. L. Is the certificate. The statement was recorded on 29th October, 1970.
8. There is no eye-witness of the occurrence. The prosecution produced Jamal Din (P. W. 11), Rehmat (P. W. 12) and Muhammad Ishaq (P. W. 14), the persons who had seen the deceased in the company of the accused along with one Muhammad Ali who was not produced.
9. At the trial Talib Ali denied his guilt and stated that the P. Ws. Have deposed against him on account of enmity and stated that he was innocent and would not produce any defence.
10. Talib Ali has filed an appeal which is Criminal Appeal No. 589 of 1972 against his conviction. The State has filed Criminal Appeal No. 939 of 1972 against his acquittal from the charge under sections 302 and 201, P. P. C. Muhammad Younas has filed Criminal Revision No. 813 of 1972. The revision was filed against Talib Ali and the acquitted respondents. In the state appeal the prayer was that Talib Ali be convicted under sections 302 and 201, P. P. C. And sentenced according to law while the prayer in the revision petition was that the order of the Additional Sessions Judge be set aside and the accused-respondents be dealt with according to law, since there was sufficient evidence including extra judicial confession. Fazal Muhammad (P. W. 16) witness of confession resiled from his statement which he made before the C. M.
11. Qazi Muhammad Saleem, learned counsel for the appellant straightaway conceded that he accepts the confessional statement made by his client before the Magistrate and argued that from his statement the injury inflicted to the deceased was simple in nature, and he could only be convicted under section 323, P. P. C. No. Conspiracy can be inferred from this statement and the prosecution has not produced Alif Din or any body else in support of this allegation. Actually more than 12 persons were suspected for different reasons and the appellant along with 5 others was challaned and tried. There is no appeal against the acquittal of other accused by the State. On the other hand Mr. A. R. Shabab Mufti argued that from the confessional statement offence under section 201, P. P. C. Is proved. There is sufficient force in the submission. Mr. Khadim Mohy-ud-Din, learned counsel for the complainant was unable to show that the acquittal of the respondents has resulted in great injustice and the judgment of the learned . Additional Sessions Judge was foolish or perverse and that during the trial any procedural error had crept up. We neither agree with Mr. Q.
M. Saleem learned counsel for the appellant that his client is only guilty of an offence under section 323, P. P. C. Nor with Mr. Khadim Mohy-ud-Din that the trial should be set aside. We are of the view that Talib Ali accused has rightly been convicted under section 325, P. P. C. And we uphold his conviction. We partly accept the appeal of the State and convict Talib Ali under section 201, P. P. C.
In view of our findings the revision petition of the complainant fails and is dismissed. Talib Ali was sentenced to 7 years' R. I. He was convicted on 17th June, 1972. Since more than seven years have elapsed we are of the view that the period of confinement and sentence already undergone by the accused will meet the ends of justice on both the counts, i. e. 325 and 201, P. P. C. Keeping in view section 382 (b), Cr. P. C. Since Talib Ali is only a tenant we are not persuaded that he should be burdened with fine under section 544-A, Criminal Procedure Code.