' IJAZ AHMAD CHAUDHRY, J.---This judgment will dispose of Criminal Appeal No,237 of 1989 filed by Ghazi and Iqbal appellants against their conviction and Criminal Revision No,18 of 1990 filed by Shaukat Ali for enhancement of sentence of both the appellants as both matters have arisen out of a common judgment dated 25-9-1989 passed by the learned Additional Sessions Judge, Rajanpur whereby he found both the appellants guilty under section 302/34, P.P.C. And sentenced them to imprisonment for life with a fine of Rs,5,000 or in default of payment thereof to suffer S.I. For one year. They were also ordered to pay Rs,10,000 is compensation to the legal heirs' of the deceased or in default of payment thereof to suffer S.I. For six months each. Benefit of section 382-B, Cr.P.C. Was also extended to them.
2. The occurrence in the present case took place on 14-10-1985 at about 7-00 a.m. In the area of Old Basti Aunhar, Mauza Shahpur which was reported by Shaukat Ali P.W.14 through statement recorded by Muhammad Nawaz. S.-I. On 14-10-1985 vide F.I.R. (Exh.PA) which was initially registered at 12-30 p.m. (noon) under sections 307/324/34, P.P.C. But later on section 302, P.P.C. Was added as the deceased died on 27-10-1985 in the hospital.
3. The brief facts narrated in the F.I.R. (Exh.PA) are that on 14-10-1985 the complainant and his brother named Zafar Ali had proceeded about "Nemaz Wela" on a Motorcycle to see their servant namely Ahmad Yar, resident of Chak Sulrrani. At about 7-00 a.m. They were coming back to their house towards Fazilpur. When they reached near Purani Basti Oner at Patrhi Dhundi Ghazi appellant armed with a hatchet and Iqbal armed with a Dang suddenly appeared in front of them. They halted them there. The complainant stopped they Motorcycle and suddenly Ghazi appellant raised a Lalkara that this was the last moment of the life of Zafar Ali and also that they would reward Zafar Ali forthwith for having abused and slapped Ghazi's father. Thereupon Ghazi gave a blow with his hatchet hitting Zafar Ali at the left side of his head. Zafar Ali fell on the ground. Then Iqbal appellant gave successive blows to the complainant's brother Zafar Ali with the Dang. He raised an alarm. Taj Muhammad and Yaqoob Ali both residents of Basti Nizamabad were present nearby. They reached the spot in the meantime and thus they witnessed the occurrence directly. The complainant and the above said two persons tried to apprehend both the appellants but seeing of the other witnesses approaching the place of occurrence, both Ghazi and Iqbal decamped along with their weapons of offence. As the complainant party was empty-handed, they could not chase them.
4. The motive behind the occurrence was alleged that father of Iqbal and Ghazi had left his animals loose a month back, which damaged the standing crop of Indian millet of the complainant, whereupon the complainant's brother Zafar Ali and abused and also given slaps to the father of Iqbal and Ghazi. Due to that annoyance, Ghazi and Iqbal had injured his brother namely Zafar Ali without any justification. The complainant and the witnesses seen the occurrence. The injured was taken to Civil Hospital, Fazilpur and later on he died in the Nishter Hospital, Multan.
5. After recording the statement under section 154, Cr.P.C. Muhammad Nawaz P.W.12 had carried out the investigation. After the death of the deceased he had recorded injury statement as well as inquest report and then sent the dead-body to Mortuary. On 20-10-1985 he had arrested Iqbal and Ghazi appellants who got recovered Sota P.1 and hatchet P.2 which were taken into possession vide recovery memos Exh.PN and Exh.PO respectively. After usual investigation report under section 173, Cr.P.C. Was submitted in the Court. Then copies of documents required under section 265-C, Cr.P.C.
Were supplied to the appellants, charge was framed against them who denied the same and claimed to be tried. The prosecution in order to prove the guilt of the appellants produced as many as 12 witnesses. The ocular account was furnished by Shaukat Ali P.W.6, Taj Muhammad P.W.7 and Yaqoob Ali P.W.8 while investigation was conducted by P.W.12 Muhammad Nawaz S.I. And medical evidence was furnished by Dr. Saeed Ahmad Usmani P.W.2, who conducted post-mortem examination, Dr. Muhammad Khalid P.W.3 who made reports that the deceased during his admission in the hospital was not fit to make statement, P.W.10 Dr. Mahmoodul Hassan, who examined the deceased in an injured condition and Dr. Rafique Ahmad P.W.11, who after X-Ray reported that there was fracture on the skull. Both the appellants in their statements recorded under section 342, Cr.P.C. Denied the allegations while professing innocence and to a question that "Why this case against you?" they made the identical statements, which is reproduced as under:-- "My father and I opposed in the Local Bodies elections Zafar Ali deceased. Prior to this occurrence, Shaukat Ali P.W.6 was driving the Motorcycle and he trampled our lamb under his running Motorcycle. We recovered a sum of Rs,200 from him as compensation. An exchange of abuses between us and Shaukat Ali P.W.6 had also taken place at that time."
' However, they did not opt to make statements under section 340(2), Cr.P.C., or produce the defence evidence.
6. After hearing the parties, the learned Additional Sessions Judge while relying upon the prosecution evidence has passed the impugned judgment of conviction against the appellants, detailed above. Hence this appeal.
7. Learned counsel for the appellants contends that Ch. Shaukat Ali P.W.6 complainant is the real brother of the deceased while P.W.7 Taj Muhammad is paternal uncle and P.W.8 Yaqoob Ali is also related to them, hence they were interested witnesses; that previous enmity existed between the appellants and the P.Ws. As the deceased had contested the election in which the appellants had cast their votes against the deceased; that P.W.6 is resident of Fazilpur which is about 8/9 kilometers away from the place of occurrence while P.Ws.7 and 8 were also residents of one mile away from the place of occurrence, who were later on introduced as witnesses and they contradicted each other on material points. P.W.7 stated that he had a sickle in his hand but P.W.6 stated otherwise that all the P.Ws. Were empty-handed; that the medical evidence is in contradiction with the ocular account; that P.W.3 Dr. Muhammad Khalid is son-in-law of Yaqoob Ali P.W. And also related to the mother of the deceased, who while posted at the same hospital where the deceased was taken had manoeuvred the medico-legal report through P.W.10 Dr. Mahmood- ul-Hassan; that P.W.2 Dr. Saeed Ahmad Usmani who conducted the postmortem examination of the deceased has given the opinion that had the deceased been provided proper medical treatment, his life should have been saved; that Injury No,2 allegedly caused with blunt weapon was wrongly described as sufficient to cause death on the asking of P.W.3 being closely related to the deceased, whereas the - latter died due to improper medical treatment/care; that the prosecution has miserably failed to prove the case against the appellants beyond any reasonable doubt and none of the P.Ws. Were present at the time of commission of the crime; that motive was not proved as none of the witnesses who had seen the deceased while slapping the father of the appellants was examined; and that the appellants were falsely implicated in the present case, who deserve to be acquitted.
8. Learned counsel for the complainant on the other hand opposes this appeal on the ground that both the eyewitnesses P.W.7 and P.W.8 are residents of the same locality and their presence at the spot is not doubtful; that it was day light occurrence and the eye-witnesses had no enmity or grudge to falsely implicate the appellant in this case; that the medical evidence is in the line with the ocular account; that the learned trial Court has rightly relied upon the evidence of the three eye-witnesses, which is trustworthy and has been rightly held sufficient to prove the case beyond any reasonable doubt; that the appellants had caused injuries to the deceased in a brutal manner, but in spite of that the sentence of death has not been imposed upon the appellants which is the normal penalty and should have been imposed against the appellants while accepting the revision petition filed by the complainant.
9. Learned State counsel also opposes this appeal and adopts the arguments of the learned counsel for the complainant.
10. I have heard the arguments of the learned counsel for the parties and also perused the record with due care and caution. Admittedly P.W.6 Shaukat Ali complainant is the real brother of the deceased but P.W.7 Taj Muhammad is not directly related to the deceased or the complainant and similarly relationship of P.W.8 Yaqoob Ali with the deceased or the complainant has not been admitted by thte P.Ws. The occurrence in the present case took place in Mauza Shahpur. P.W.7 and P.W.8 are residents of Basti Nizamabad and during cross-examination they stated that their houses were at a distance of one kilometer from the place of occurrence but they have explained their presence at the spot sufficiently as they had the lands near the place of occurrence at a distance of three squares towards east. Both of them were independent and natural witnesses, whose presence at the spot cannot be doubted. Similarly P.W.6 Shaukat Ali has admitted that he was residing at Fazilpur which is at a distance of nine kilometers but according to him his deceased brother used to reside at Basti Nizamabad, which is at a distance of seven squares from the place of occurrence and therefrom their land is at a distance of 2 squares. P.W.6 also stated that the land, the crop of which was damaged was about six squares away from the place of occurrence. In the above circumstances it can safely be held that the presence of P.W.6 at the spot was also not unnatural as their land situates just 2 1/2 squares away from the place of occurrence and he was looking after his land along with the deceased. The accused are also residents of the same Basti and their lands were near the place of occurrence. The possibility of presence of all the eyewitnesses at the spot cannot be ruled out and they have been rightly relied upon by the learned trial Court as they remained consistent on material points regarding time, date and the place and the manner in which the occurrence took place. They had no motive to falsely implicate the appellants in the present case. The motive alleged for the false implication of the appellants was that the deceased had contested the election and they had opposed him. It is noted that number of persons might have opposed him in the election but why the appellants were chosen to implicate them in the present case by letting off the real culprits. Hence this reason for false implication of the appellants cannot be given any weight.
11. However, the prosecution has miserably failed to prove the motive as P.W.6 has stated that when the deceased had slapped the father of the appellants, who was an old man, he was not present there. It is also stated by P.W.6 that the deceased had not told him about the damage caused to the crop. But according to him, Ahmad Yar, their servant, was present at the time of motive. Said Ahmad Yar though appeared before the Investigating Officer and his statement was recorded under section 161, Cr.P.C. But he was not produced by the prosecution in the learned trial Court.
Hence there is no evidence on the record to prove the motive as alleged by the prosecution.
12. It is a case in which motive has been specifically narrated that one month before the incident the cattle of the father of the appellants had damaged the crop of the deceased, who had slapped the father of the deceased and due to this reason this occurrence had taken place. It is strange that the deceased was not usually using the same path and the presence of the deceased and the complainant at the place of occurrence was not a routine matter but it was incidental. How the appellants had come to know that the deceased was coming on a Motorcycle and they were waiting for the arrival of the deceased and the complainant at the said place of occurrence.
According to the prosecution aversion both the complainant and the deceased were present on the Motorcycle at the time of occurrence but it is strange that no injury was caused to the complainant. It seems that the occurrence had not taken place in a pre-planned manner but something had happened immediately before the occurrence resulting into commission of the same, which has not been disclosed by both the parties. The nature of weapons used by the appellants also supports the view that the occurrence might have taken place at the spur of amount without pre-meditation. It is also noticed that appellant Ghazi though was armed with a hatchet yet the injury attributed to him on the head of the deceased was declared as simple, which had not contributed in the death of the deceased and he had not repeated the blow on the person of the deceased. Similarly Iqbal appellant was specifically attributed only one injury on the head and regarding other injuries only general allegation of inflicting Sota was levelled against him. It is the prosecution version that the deceased had fallen from the Motorcycle when he was given first blow by Ghazi appellant. The other injuries could be as a result of the said fall from the Motorcycle.
After perusal of the whole evidence in all probability I find that it was a case of sudden flare-up.
13. Now I come to the medical evidence. Ghazi appellant had not repeated the blow and was attributed one simple injury while blows given by Iqbal appellant also did not cause the death of the deceased immediately, who died after about 13 days of the incident. I have noticed that according to Dr. Muhammad Khalid P.W.3 who was also closely related to the deceased, the latter during his admission in the hospital remained unconscious and was not in a position to make any statement. Admittedly, there was no facility available in the Rural Health Centre to cure the disease/injuries caused to the deceased. Even his X-Ray was got conducted from DHQ Hospital, Rajanpur. But why the deceased remained admitted in the said hospital for nine days till 23-10- 1985 without proper treatment as P.W.3 himself admitted that it was a case of Neuro Surgery and there was no Neuro Surgeon posted at the Rural Health Centre. P.W.2 Dr. Saeed Ahmad Usmani has also given the opinion that if timely treatment had been given to the deceased, he could possibility be saved.
14. In the above facts and circumstances I find that the prosecution has not succeeded in making out a case of pre-planned murder but the same had occurred at the spur of moment without pre- meditation for the murder of the deceased and according to exceptions of section 300, P.P.C. It was not a case of culpable homicide amounting to murder. Hence the conviction of the appellant namely Iqbal who is attributed fatal injury under section 302, P.P.C. Is converted to section 304, Part-I, P.P.C. The other appellant namely Ghazi was attributed only simple injury with sharp edged weapon. He cannot be held vicariously liable for the act of the co-appellant as the prosecution failed to prove pre-meditation. Hence while setting aside conviction of Ghazi appellant under section 302/34 he is convicted under section 324, P.P.C. Only.
15. So far as quantum of sentence is concerned both the appellants were arrested on 20-10-1985.
Then they were allowed bail after the expiry of the statutory period of two years. Thereafter the judgment of conviction was announced on 25-9-1989 and both the appellants were taken into custody and sent to judicial lock-up to serve out the remaining sentence. Ghazi appellant was again released on bail after the elapse of the statutory period of two years after suspension of his sentence on 27-11-1991. As such he has already served out more than four years in jail as under- trial prisoner and after conviction whereas offence under section 324, P.P.C. (old) was only punishable up to three years imprisonment. As such he is sentenced to the period already undergo by him.
16. Iqbal appellant also remained in jail as under-trial prisoner for two years and after conviction his sentence was suspended on 27-5-1995. As such he has already undergone at least eight years in jail without remissions. The occurrence in the present case had taken place twenty years earlier in the year 1985. He has also undergone the agony of trial for four years and then this appeal remained pending for 16 years. As such it will not be justified to again send Iqbal appellant to jail at this stage, when this Court has converted his conviction under section 304, Part-I, P.P.C. Thus he is sentenced to the period already undergone by him in jail in this case. However, the direction regarding payment of fine and compensation is maintained.
17. With the above alteration in the conviction and quantum of sentence, the impugned judgment is modified and Criminal Appeal No,237/89 stands disposed of.
18. In view of above no question arises for enhancement of sentence and Criminal Revision No,18/90 filed by the appellant seeking the said relief being devoid of any merit is dismissed.