AFTAB FARRUKH, J.---Mr. S. M. Babar, Additional Sessions Judge, Sialkot, vide his judgment dated 6-3-1976, convicted and sentenced Talib Hussain, his brother Muhammad Khan and a close relation Rashid Ahmad, under section 447/34, P. P. C., to two months' R. I. Each; under section 325/34, P. P. C. To five years' R. I. Each and a fine of Rs. 500 each or in default a further rigorous imprisonment for six months and under section 302/34, P. P. C; for the murder of Muhammad Iqbal, Talib Hussain to death and a fine of Rs. 1,000 in default whereof further rigorous imprisonment for one year Muhammad Khan, Rashid Ahmad for the same offence to imprisonment for life and a fine of Rs. 1,000 each or in default a further imprisonment for one year. It has been directed that the amount of fine if realised, be paid the heirs of the deceased. The convicts have filed Criminal Appeal No. 283 of 1970, while Murder Reference No. 203/1976 has been made to this Court under section 374, Cr. P. C. For the confirmation of death sentence. This judgment will dispose of both the cases.
2. The occurrence is stated to have taken place at about 7 or 8 a.m. On 31-1-1974 outside the dera of the complainant party in Village Langa, P. S. Philaura, District Sialkot. Statement Exh. P. A. Of Abdul Majid (P. W. 9) was recorded the same day at 2-45 p.m., by Maqsood Ahmad (P. W. 15) A. S. I. In Pasrur Hospital, whereupon a case under section 307/34, P. P. C. Was registered vide Formal F. I. R.
Exh. P. A./1 same day at the Police Station by P. W. 6 Muhammad Saleem Head Constable. At about 10 a.m., Allah Bakhsh (P. W. 13) informed Aswar Ali Shah (P. W. 14) Sub-Inspector incharge of Police Station Philaura of the expiry of Muhammad Iqbal in the hospital, whereupon the case was converted to one under section 302/34 P. P. C.
3. Muhammad Khan, Talib Hussain were arrested by Aswar Ali Shah (P. W. 14) on 9-2-1974, whereas Rashid Ahmad was arrested on 27-5-1974. Talib Hussain and Muhammad Khan led to the recovery of dang each Exhs. P. 1 and P. 2, respectively, on 15-2-1974, which were taken into possession vide memo. Exhs. P.M. And P. N. Respectively. Allah Bakhsh (P. W. 13) has appeared at the trial to prove these recoveries besides the investigating officer. Exhs. P. 1 and P. 2 are not blood-stained and, particularly, in view of the plea raised by the accused in their defence, these recoveries are not of much significance.
4. The motive for the occurrence, allegedly, is, that during the con--solidation proceedings path of the village had been taken over for Eidgah seven or eight years prior to the occurrence. For several years no path was demarcated. In 1973, a path running through the field and the water channel of appellants Talib Hussain and Muhammad Khan, is said to have been demarcated.
A day before the occurrence, Abdul Majid (P. W. 9), Ashiq Hussain (P W. 11) real brothers of the deceased started levelling the water-channels of the appellants. Whereupon Talib Hussain, etc. Abused them and stopped them from levelling the water channels. Allah Ditta (P. W. 12), also, a relative of the complainant party intervened and both sides agreed to the suggestion of convening a Panchayat to settle the matter.
5. On the day of occurrence, a buffalo of the complainant strayed in the shaftal field of Talib Hussain, Muhammad Khan appellants and damaged the crop on which the two appellants started abusing Abdul Majid who took back the buffalo.
At about 7 or 8 a.m., the three brothers i.e. The deceased accompanied by Abdul Majid (P. W. 9) and Ashiq Hussain (P. W. 11) again began to level the water channel ; Talib Hussain standing at his own dera which is nearby, started abusing the complainant patty. Mst. Sardar Bibi (P. W. 10) reached there and persuaded the deceased and his brothers to take legal action in the matter.
She took them back to their own dera which is adjacent to the field. It is alleged that simultaneously Talib Hussain and Muhammad Khan armed with dangs and Rashid Ahmad empty- handed came at the dera of the complainant party, and started abusing. Mst. Sardar Bibi asked them not to do so. Rashid Ahmad grappled Abdul Majid (P. W. 9) while Muhammad Khan inflicted a blow each on his head, the face and thigh of Talib Hussain inflicted a dang blow on the head of Muhammad Iqbal who fell down and while he was falling, Muhammad Khan delivered two more dang blows landing at the hand and the forearm of the deceased. Their mother Mst. Sardar Bibi (P.
W. 10) was about to intervene when Talib Hussain inflicted a blow on her hand. Nazir Ahmad, Allah Ditta, Hayat Muhammad, Talib Hussain son of Muhammad Din intervened and rescued the complainant party.
6. Abdul Majid (P. W. 9) real brother of the deceased, Mst. Sardar Bibi (P. W. 10) mother of the deceased, Ashiq Hussain (P. W. 11) another brother of the deceased and Allah Ditta (P. W. 12) a relative (grandfather of the witness and that of the deceased were real brothers) appeared at the trial and gave the ocular account.
7. Muhammad Khan and Rashid Ahmad have denied their presence while Talib Hussain when examined under section 342, Cr. P. C., has given his own version of the occurrence. In answer to Question No. 12, he has stated thus :-- "I am innocent. The fact of the matter is that on 30th January 1974, the complainant party tried to forcibly demolish the water channel in my land when I stopped them, i.e., Abdul Majid P. W. And Muhammad Iqbal deceased, grappled with me, I inflicted fist blows to them and we returned to our respective dera. On the next morning a buffalo of the complainant party strayed into my field and damaged my Shatala crop, I apprehended the said buffalo and tied at my Dera. At about 7 or 8 a.m., when I was about to take the buffalo to the cattle-pond, Abdul Majid P. W. Came to my field armed with a dang and wanted me to return the buffalo. I refused and insisted to take the buffalo to the cattle pond. Abdul Majid P. W. Attacked and injured. I picked up a dang and inflicted injuries on him. His brothers Iqbal deceased and Ashiq Hussain on seeing this rushed to my field carrying dangs with them. Iqbal deceased who was ahead of Ashiq P. W., assaulted me and raised his dang to hit me but before he could do so I injured him and felled him to the ground. The complainant party ran away and Iqbal was later removed from my field. My co-accused Muhammad Khan and Rashid were not present at either of the incidents. Mst. Sardaran P. W. Did not come there nor she received any injury at my hands. The injury on her person has been fabricated by the complainant party to make it believable that the occurrence took place at the dera of the complainant. I acted in self-defence."
8. Doctor A. R. Arain, Medical Officer, Civil Hospital Pasrur, on 31-1-1974 at 10 a.m., examined Muhammad Iqbal deceased, when alive and found the following injuries on his person :- "(1) Contused wound, 2--- x ----- x bone deep, on the left side of the head and forehead. It is oblique in direction and 2----- above left eye-brow. The left eye was blackened and swellen.
(2) Multiple abrasions, ----- x ----- and ----- x 1/3", in size on the back of right hand.
(3) Multiple abrasions, 2--- x -----, in area on the outer side of left upper arm."
The same day, at 10-15 a.m., he examined Abdul Majid (P. W. 9) and found the following injuries on his person :-- "(1) Contused wound with swelling, 1' x ----- x skin deep on the left side of the head 3----- above the left ear. It was oblique in direction.
(2) Lacerated wound, ----- x 1/8", x muscous membrane deep with swelling under the right upper lip. (3) Reddish contusion, 3--- X 1---, on the upper outer of left thigh."
On 9th February 1974, he also examined Talib Hussain appellant and found the following injuries on his person :- "(1) Abrasion, ----- x ----- on the back of left thumb. It was covered with scab. The scab was falling down by cut.
(2) Abrasion, ----- x ----- covered by scab on the back of distal phalanges of right ring finger. The scab was falling down by cut.
(3) Abrasion ----- x ----- with swelling on the back of root of left index finger. It was covered with scab. The scab was falling down by cut.
(4) Swelling all over the back of left hand. Injury No. 4 kept under observation for X-ray."
Since Abdul Majid P. W. Did not have X-ray, Injury No. 1 was considered simple. X-ray report of Dr. Muhammad Aslam Chughtai in respect of injuries of Talib Hussain appellant did not indicate any fracture, so injuries on his person were also declared as simple.
9. On the same day, Lady Dr. Fehmida Sarfraz W. M. O., Civil Hospital, Narowal (P. W. 2), examined Mst. Sardar Bibi (P. W. 10) and found "swelling on the back of right hand radial side more on the second metacarpal bone, 3--- x 3" crackling sound present on the underneath bone (second metacarpal bone) and there was the fracture of this bone". Therefore, the injury was declared as grievous.
10. Doctor Akhtar Shafique Cheema (P. W. 1) performed the post--mortem examination on the person of Muhammad Iqbal deceased and found the following injuries on his dead body :- "(1) A stitched contused wound, 2--- x -----, on the left side of head leading towards the forehead.
(2) Tarsal of left eye was blackened.
(3) Three abrasions each of ----- x -----, on the darson of right hand.
(4) An abrasion, 1----- x -----, on the middle and front of left arm.
(5) An abrasion, 3----- x ----- below injury No. 4."
We feel that injury No. 2, "tarsal of left eye was blackened", was the result of injury No. 1 and had not been caused by any separate blow and the abrasions noted at injury No. 3 are not the result of specific blows by a formidable weapon like dang which are attributed to Muhammad Khan appellant when the deceased was falling on receipt of injury No. 1 attributed to Talib Hussain appellant. These abrasions on the right hand, left arm appear to have been suffered during grappling or in a scuffle which, we feel, must have preceded the occurrence. Prosecution version to this extent is belied by the medical evidence. Similarly, all the three injuries on the person of Abdul Majid P. W. Are simple in nature. Injury No. I is only skin deep and of the dimension of 1--- x -----.
Injury No. 2 is only, -----x 1/8---, and injury No. 3 is a reddish. Contusion, 3--- x 1--- on the upper outer of the left thigh. Similarly, the injury on Mst. Sardar Bibi is on the hand though unfortunately, it is a fracture of the second metacarpal bone. All these injuries are inconsistent with the allegation of a determined attack by two young men armed with dangs. Talib Hussain appellant is also injured and he has suffered four simple injuries but for the swelling all over the back of left hand, all other injuries are abrasions.
11. Prosecution has suggested two motives. One is demolition of water-channel passing through the newly-sanctioned path, a day preceding the occurrence and on the day of occurrence as well by the complainant party; and the other that of straying of the buffalo of the complainant party into the Shatala crop of the appellants on the day of occurrence. We agree with the observations of the trial Court that the- prosecution had not been able to establish conclusively that the path leading to the dera of the complainant party had been demarcated. Prosecution therefore, has failed to establish the first motive. It is a common ground between the parties that a buffalo of the complainant party had damaged the crop of the appellants. This was the immediate cause of the incident. It is admitted in cross-examination by Abdul Majid (P. W. 9) that when he along with his two brothers, namely, Ashiq Hussain (P. W. 11), and the deceased, were levelling the water-channels of the appellants on the morning of the day of occurrence, all the three accused came from the-- village and went to their dera. It is significant that Mst. Sardar Bibi (P. W. 10), while referring to this incident at page 36, line 7, admits, "even at that time they had dangs in their hands". If it was on this account, they would have picked up a row then and there and attacked them at the spot. It is further admitted by Abdul Majid (P. W. 9) in his cross--examination as Well as in the F.I.R. That when they levelled the water---channel a day preceding the occurrence and the appellant stopped them, Allah Ditta intervened and suggested that the matter be put before the village panchayat, the appellants also had agreed to it.
It is the case of the prosecution itself that on the day of occurrence, the complainant's buffalo strayed into and damaged Shatala crop of the appellants. In this view of the matter, we are of the opinion, that on the straying of the buffalo in the Shatala crop of the appellants, Talib Hussain caught hold of the buffalo, Iqbal reached there to recover it, which led to the exchange of abuses, grappling and the unfortunate blow which landed on the head of Iqbal and proved fatal in a sudden flare up. It was not a case of premeditated attack. This theory has consistently been suggested to the P. Ws., in cross-examination and in the plea of the accused. He has even claimed the right of self-defence taking up the position that Iqbal deceased, in fact, was the aggressor. We, however, wish to refer to this aspect while dealing with the ocular testimony.
12. Amongst the four eye-witnesses mentioned above, Abdul Majid and Ashiq Hussain are brothers of the deceased, while Mst. Sardar Bibi is their mother and Allah Ditta is a relative. Ashiq Hussain does not bear even a scratch on his person. Moreover, the admission of Mst. Sardar Bibi and from the suggestion of the defence it can safely be inferred that Ashiq Hussain reached the spot after the occurrence. But in the presence of Abdul Majid and Mst. Sardar Bibi injured P. Ws., acceptance of the testimony of Ashiq Hussain, or otherwise, does not make any material difference more particularly in view of the plea raised by the accused-- appellants. In fact, the issue is narrowed down to analysing the two versions which we propose to do here. We have already discussed the medical evidence and ruled out the possibility of the incident being a premeditated or determined attack with the intention of murder. If the attack was motivated on account of the demarcation of paths, the appellants would not have agreed to refer the matter to the village Panchayat on the evening preceding the day of occurrence. We feel there was no second attempt on the part of the complainant party to demolish the water-channel on the following morning, i.e. The day of occurrence before the dispute was placed before a Panchayat and this factor has been introduced to bring in an element of premeditation. There is no evidence on record that the Panchayat was convened or that it gave a verdict in favour of the complainant party which necessitated the demolition of the water channel on the following morning. As the case has been set out, if they proceeded to do so, without a decision of the Panchayat, having agreed on the preceding evening to hold a Panchayat, we are afraid, their own conduct as such tends to show that they were aggressors.
The dera of the complainant party is adjacent to the Shatala crop of the appellants, in which also they have their dera. It is admitted that the two deras are at a distance of twenty-five or thirty karams from each other. It is a case of the prosecution itself, that the buffalo of the complainant strayed into the field of the appellants, and damaged the Shatala crop. This would naturally have attracted the appellants from their dera who even if did not catch hold of the buffalo, would have resented to it. In can safely be presumed that this resulted in the exchange of abuses. Resentment by complainant party seems to have spoiled the situation further and this led to grappling and use of arms. The abrasions on both hides are consistent with a scuffle which must have ensued. Talib Hussain may be holding a sota to manage straying buffalo which he would have used in the scuffle resulting in the injury on the head of Iqbal which proved fatal. No blood has been taken in possession from the dera of the complainant party. Admittedly, buffalo strayed into the field of the appellants. They would have caught hold of it in their field and attempted to take it to their own dera. The complainant party, it appears, then followed them to get back the buffalo. The circumstances rather suggest that the incident took place somewhere in the fields. Presently it is being shown a few. Karams away from the dera of the appellants. (The field of the accused- appellant and the dera of the complainant adjoin each other). Abdul Majid (P. W. 9) in his cross- examination at page 34 has admitted:-- "We might have levelled about two, or three Karams even on the day of occurrence. When the three accused came to our dera to attack us, we three brothers including the deceased and my mother Mst. Sardar Bibi P. W. Were sitting in front of our dera building under pipal tree. I cannot recollect to which side were we facing at that time. The dera of the accused is towards North Eastern side of our dera and is at a distance of about 25 or 30 karams. The dera of the accused is visible from our dera. Any one coming from the village side is also visible from our dera."
From the above it is obvious that if assailants armed with dangs were approaching the complainant's dera and in the background of the alleged incidents preceding immediately, i.e. In the morning and in the evening preceding the day of incident the complainant would have immediately felt apprehensive and had either been away for refuge or armed themselved to meet the challenge and a fight, still worse, time would have witnessed In this view of the matter, we consider it an unpremeditated sudden quarrel and hold each appellant responsible for his own acts.
13. As far as Rashid Ahmad appellant is concerned, he was admittedly, empty-handed. A superfluous role of holding the complainant has been attributed to him. If it was a predetermined, attack, he would not have gone unarmed. He does not live in the village and is a resident of Village Dudyala at a distance of 20 miles from the place of occurrence. He does not own any land or any house in village Langa nor does he have any relative in the village except Talib Hussain who is brother-in-law of hi elder brother (wife of Talib Hussain and wife of brother of Rashid Ahmad are sisters). Talib Hussain and Muhammad Khan have no other real brother. The attribution at the trial by the complainant that Rashid Ahmad had also joined the two accused in abusing them at the time of levelling the water channel on the day of occurrence was not mentioned in the F.I.R. Nor before the Committing Magistrate, We, therefore, find his participation in the incident extremely doubtful and giving him benefit of doubt and acquit him of all the charges.
Fatal blow is attributed to Talib Hassain. He did not repeat blow toy the deceased, when he lay prostrate before him. The assertion, that after Ashiq Hussain P. W. Had reached the spot he gave a dang blow to Talib Hussain was not mentioned in the F. I. R. It is the case of the prosecution itself that preceding evening when they were levelling the water-channel of the appellant, to which he objected, on the intervention of Allah Ditta, he at once agreed to the holding of a Panchayat. It is again the case of the prosecution, though we have not believed it, 9 that the incident had immediately preceded, by another attempt on the part, of the complainant party to level the water channel of the appellants and again it was the case of the prosecution itself that the buffalo of the complainant had strayed and damaged Shatala crop of the complainant and finally taking into consideration, the period of the detention pending the trial, we record the conviction under section 304 (II), P. P. C. And sentence him to seven years' R. I., with a fine of Rs. 1,000 (Rupees one thousand only) and further one year's R. I. In default of payment of fine.
As regards Muhammad Khan, we feel that he can safely be burdened with the liability to share common intention of causing grievous hurt, which could be formed at the spot at the spur of the moment. He is also alleged to be armed with dang. We convict him under section 325/304, P. P. C., but hearing in mind the period of his detention during trial, and that his liability is only constructive, we award him a sentence of three years and a fine of Rs. 500 (Rupees five hundred only), in default whereof he will further undergo six months' R. I. The injuries other than on the head of the deceased and that of Abdul Majid are simple in nature and cannot be safely connected with either of the two, Talib Hussain or Muhammad Khan, no conviction is, therefore, recorded in this regard.
To sum up, convictions of all the appellants under section 302/34, P. P. C. And 447/34, P. P. C. Are set aside. Death sentence of Talib Hussain is not confirmed. Talib Hussain is convicted under section 304, Part II, P. P. C. And sentenced to seven years' R. I. With a fine of Rs. 1,000 in default of payment of fine, he .Is directed to further undergo one year's R. I. Convictions under section 325/34, P. P. C. Of Talib Hussain and Muhammad Khan are maintained but the sentence is reduced to three years' R. I.
And a fine of Rs. 500 (Rupees five hundred only) each, in default of payment of fine he is directed to further undergo six months' R. I. The sentences of Talib Hussain will run concurrently. The whole of the fine if realised will be paid to the heirs of deceased Muhammad Iqbal.
Conviction and sentence of Rashid Ahmad appellant on all the charges is set aside and he be released forthwith if not required in any other case.
Appeal is partly accepted.