' MUHAMMAD FARRUKH MAHMUD, J.---Dil Muhammad-appellant, along with Makhan alies Makna, Mansib and Falak Sher, was tried by the learned Additional Sessions Judge, Haroonabad, Camp at Fortabbas, in case F.I.R. No,247 initially registered at Police Station Fortabbas on 12-10-2002 for offences under section 324/34, P.P.C. But subsequently on the death of Nazar Muhammad- deceased, offence under section 302, P.P.C. Was added thereto. Vide judgment, dated 5-6-2003 the learned trial Court, while acquitting the aforesaid co-accused, convicted the appellant for offence under section 302(b), P.P.C. And sentenced him to death plus payment of Rs,30,000, as compensation to the legal heirs of the deceased, in default whereof to further undergo S.-I. For six months.
2. Dil Muhammad alias Bhutto has challenged his above noted conviction and sentence by filing the instant appeal, while the learned trial Court has made a reference bearing Murder Reference No,31 of 2002 under section 374, Cr.P.C. Seeking confirmation or otherwise of death sentence inflicted upon the appellant. We propose to decide both these matters through this judgment.
3. Briefly, the facts of the prosecution case per complaint Exh.PA recorded by Muhammad Farooq, A.S-I./P.W.9, at the instance of Muhammad Arshad, complainant/P.W.1, which based the registration of formal F.I.R. Exh.PA/1, are that on 12-10-2002 at 8-06 p.m. The turn of water of the complainant party finished, whereafter the turn of water of village school started. At about 9-00 p.m., after watering their fields, the complainant and his uncle Nazar Muhammad were going back to their home and when they reached nea the corner of their village, they came across Dil Muhammad alias Bhutto, who was armed with a Dang, Mansab, Makhan and Falak Sher, who were empty handed. Dil Muhammad while alleging that Nazar Muhammad always used to steal their water, threatened that a lesson would be taught to Nazar Muhammad and that he would not be spared, whereupon Nazar Muhammad explained that he never stole their water. Dil Muhammad alias Bhutto gave a Dang blow on the head of Nazar Muhammad. Falak Sher, Makhan and Mansab (acquitted co-accused) also gave kick and fist blows to Nazar Muhammad. The hue and cry raised by the complainant party attracted Umar Hayat and Warasat Ali/P.W.2, who also witnessed the occurrence. Nazar Muhammad fell on the ground and became unconscious.
' The motive behind the occurrence was that about 3/4 months prior to the occurrence, Nazar Muhammad had got sanctioned an outlet/Nakka, which annoyed Dil Muhammad alias Bhutto etc., who kept grudge in their mind and for that reason, in order to commit his murder, all the accused- had injured him.
4. The complainant and others were taking Nazar Muhammad/injured on a tractor trolley to the Civil Hospital, Fortabbas, for treatment, when, on their way near Degree College, Fortabbas, they came across Muhammad Farooq, A.SI./P.W.9, who, along with other police officials, was present there in connection with patrol duty. Muhammad Farooq/A.S.-I. Recorded the statement/complaint Exh.PA at the instance of the complainant and sent the injured Nazar Muhammad to Civil Hospital, Fortabbas. The i:o. Through application Exh.PE inquired from the Medical Officer, whether the injured was fit to give his statement. The doctor replied in the negative. Due to serious condition, Nazar Muhammad was referred to Bahawalpur. Nazar Muhammad died on the same night at Bahawalpur.
5. Muhammad Farooq, A.S-1./1.0., went to the place of occurrence and prepared its rough site plan Exh.P.L.. He secured blood stained earth from the spot and sealed the same into a parcel vide memo. Exh.PF. On receipt of information about the death of Nazar Muhammad, the I.O. Went to Civil Hospital, Fortabbas; prepared injury statement Exh.PD and inquest report Exh.PD/1 of the deceased and got conducted post-mortem examination on the dead body of the deceased. The, accused including the appellant were arrested on 17-10-2002. On 20-10-2002 while in custody, Dil Muhammad appellant led to the recovery of Dang P.3 which was taken into possession vide memo.
Exh.PH. On 24-10-2002. The 1.0. Got prepared the scaled site plan of the place of occurrence (Exh.PJ) from Rana Ashiq Hussain, Sub Engineer/P.W.7. After completion of investigation, the appellant along with his acquitted co-accused was challaned to face the trial.
5-A. To substantiate its version at the trial, prosecution produced eleven witnesses. Muhammad Arshad/P.W.1 and Warasat Ali/P.W.2 furnished the ocular account. They also stated about the motive. Dr. Muhammad Javed/P.W.4 stated that on 12-10-2002 at about 12.20 a.m., he medically examined Nazar Muhammad, who was unconscious. He found one lacerated wound on left side of head 5 c.m. From midline near to hairline. The injury was declared to be dangerous to life. The injured was referred to Surgeon, who further referred him to BY Hospital, Bahawalpur. On 12-10-2002 at 3-00 p.m., Dr. Muhammad Javed/P.W.4 conducted post-mortem examination on the dead body of Nazar Muhammad deceased and found the following injury on his person:-- ' There was a lacerated wound on left side of head 5 c.m. From midline near to hairline. Bone was exposed 4.5 x 0.5c.m. Linear and longitudinal on dissection of head, there was blood clotted underneath the scalp dark coloured on the vertex. There was also found fracture of skull at vertex.
Transversely'and longitudinal on opening of skull found a huge haematoma on left side of cranium/cavity, extradural compressing meninges and brain matter. Meninges and brain matter was healthy.
' In the opinion of the doctor, the injury/head injury by which fracture of skull and a huge intracranial haematoma on left side compressed the brain and vital centre led to cardio respiratory arrest and death. According to the doctor, the time which elapsed between injury and death was within 12 to 15 hours, while it was 6 to 7 hours between death and post-mortem examination. Muhammad Farooq, A.S I./P.W.9, stated about the drafting of complaint, its dispatch for formal registration of F.I.R. And the investigation thereafter. The rest of the evidence, being formal in nature, need not be discussed. After placing on record the reports of Chemical Examiner Exh.PK and the Serologist Exh.PL, the prosecution closed its case.
6. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication. According to him, in fact, a fight took place between Asghar Jatt and deceased party and during this fight Sota blow of unknown person was inflicted on the head of Nazar Muhammad deceased. He added that it was a dark night and unwitnessed occurrence. He and his co-accused purchased land in the Chak of complainant; hence, they had a grudge against them.
However, the appellant neither appeared as his own witness nor did he produce any witness in his defence.
7. Today, neither the complainant nor his learned counsel has put in appearance despite repeated calls nor any application seeking adjournment has been received on their behalf. The name of the complainants' learned counsel stands duly reflected in the cause list. In these circumstances, we have no option but to proceed with this matter.
8. At the very outset, learned counsel for appellant, while relying upon the case of Talib Hussain and another v. The State PLD 1994 Lahore 43 has submitted that the case of appellant attracted the provisions of section 302(c), P.P.C. And not section 302(b), P.P.C., as, undeniably, the appellant caused a single blow with Dang and did not repeat the injury though the deceased did not die in the presence of the appellant; that it was a sudden occurrence, as P.W.1 admitted that a slight altercation took place before the occurrence; that on the same point, P.W.2 stated that he reached the spot after hearing the noice within 2/3 minutes and within his presence, the injury was caused by the appellant, which supports the contention that altercation preceded the causation of the injury; that though it was alleged that 3/4 months prior to the ,occurrence, outlet of water was got sanctioned by the deceased in his favour, which caused grievance to the appellant but the same could not be substantiated by any documentary evidence; that during trial, P.W.9/I.O. Admitted that he did not know about the sanction of the outlet; that undeniably, the appellant and the deceased lived in the same village but nothing untoward happened within Y4 months of the sanction of the outlet; that the learned trial Court observed that the occurrence took place over a dispute of irrigation water and no other enmity existed between the parties
9. Conversely, the learned Deputy District Public Prosecutor appearing on behalf of the State submits that P.Ws.1 and 2 had no enmity, whatsoever, with the appellant, so as to involve him in a false case; that their statements are supported by the medical evidence and corroborated by the evidence of recovery of Dang; that as far as quantum of sentence was concerned, the appellant gave a Dang blow on the head of the deceased which caused fracture of the vital part of the body and proved fatal; hence, the appellant did not deserve any leniency.
10. We have heard the learned counsel for the parties and scanned the entire record of the case.
11. As far as role of the appellant is concerned, P.W.1 Muhammad Arshad and P.W.2 Warasat Ali have given a very consistent account. The single injury is attributed to the appellant. The rest of the accused, who were acquitted, were empty handed. Their acquittal, in no way, would benefit the appellant. It is true that both the eye-witnesses were related to the deceased but their relationship with the deceased would not be enough to discard their statements, especially when both the witnesses did not have any personal grudge or enmity against the appellant. The presence of Muhammad Arshad P.W. Is also established from the fact that his statement was recorded by Muhammad' Farooq/A.S-I., while he was taking Nazar Muhammad-deceased, in injured condition, on a tractor trolley ,to the hospital. The statements of the two eye-witnesses are fully supported by the medical evidence and corroborated by the circumstances of the case.
12. According to medical evidence, the deceased was taken to the hospital at 12.20 a.m. On 12-10- 2002. According to Dr. Muhammad Javed/P.W.4, at the time of examination, the deceased was unconscious and his condition was not out of danger. The deceased had received injury on the left side of his head, which was caused by a blunt weapon. Due to the above noted injury, Nazar Muhammad lost his life at 9-00 a.m. On 12-10-2002. According to post-mortem report, the above noted injury caused fracture of the skull and proved fatal.
13. As far as motive is concerned, it was alleged in the F.I.R. That on the fateful night, complainant and deceased were returning to their houses after watering their fields when they came across the appellant, who was armed with a Dang, and other accused, who have been acquitted. It was the appellant, who, after alleging that Nazar Muhammad had been stealing water and a lesson would be taught to him, caused injury on the head of the deceased despite the fact that the deceased explained that he had never stolen the water. The complainant further stated in the complaint that 3/4 months prior to the occurrence, an outlet of water was got sanctioned by the deceased in his favour, which caused annoyance to the appellant and other accused. However, Muhammad Arshad stated before the learned trial Court that the turn of water of his uncle finished at 8-06 p.m.
Thereafter the turn of water of village school started and after that the turn of water of the accused appellant started, which clearly means that the deceased and Arshad had no business to remain near the outlet after 8-06 p.m. It is note-worthy that according to P.W.1, the turn of water of school was to finish at about 9-36 p.m. And thereafter the turn of water of the accused was to start. It is no body's case that the school employees were utilising their turn of water on the fateful night.
Obviously, the private persons used to take benefit from the turn of water of village school and it is most likely that the altercation took place between the deceased and the appellant over the utilization of the turn of water of the school.
14. As far as recovery of Dang at the instance of the appellant is concerned, suffice it to say that it cannot be used as evidence against the appellant because the Dang was not blood stained.
15. The upshot of the whole discussion is that in our opinion the- prosecution has successfully proved its case against the appellant through ocular evidence, which is supported by the medical evidence and corroborated by the circumstances of the case.
16. Having come to this conclusion, we have given our considerate and anxious thoughts to the quantum of sentence in the above noted circumstances of the case. Undeniably, no altercation took place between the deceased and the- appellant for 3/4 months when allegedly the outlet/Nakka of water was got sanctioned by the deceased in his favour. No documentary proof has been brought on the record of the case that any outlet. Or Nakka was sanctioned 3/4 months prior to the occurrence. Further more, the turn of water of the appellant was to begin after the turn of water of the deceased and the intervening period belonged to the turn of water of village school.
It appears that an altercation took place between the parties over utilization of the turn of water of the village school. The situation worsened and in heat of passion, the appellant gave a blow which landed on the head of the deceased. Undeniably, the appellant did not attempt to repeat the blow in order to ensure the death of Nazar Muhammad prior to this occurrence, the parties had been living peacefully in the village. It was not unusual for the appellant E to carry a Dang while he was going to water his fields during the night. In the circumstances, we alter the conviction of the appellant to offence under section 302(c), P.P.C. And reduce his sentence to fifteen years' R.I. The benefit of section 382-B, Cr.P.C. Is given to the appellant. The order passed by the learned trial Court under section 544-A, Cr.P.C. Is maintained.
17. With the above modification in the conviction of the appellant and reduction in his sentence, this appeal is partly allowed. The death sentence is not confirmed. The Murder Reference is answered in the negative.