Asghar (25) and his brother Jamal Din (52) were tried for the murder of their uncle Abdul Ghaf6or, by Mr. Taj Muhammad, Addl. Sessions Judge, Sheikhupura, on 24th May, 1979. Asghar was convicted under section 302, P. P. C. And sentenced to imprisonment for life with a fine of Rs. 5,000, in default to two years' R. I. Further. Jamal Din was convicted under section 323, P. P. C. And sentenced to six months' R. I. And to a fine of Rs. 1,000, in default to undergo three months' R. I. Further. The fine if realized was ordered to be paid to the heirs of the deceased. Appeals of the convicts are before me.
2. Abdul Ghafoor deceased and his brother Karam Din were residents of Chak No. 4/G. B., situated in Tehsil Nankana Sahib, District Sheikhupura. About 10/11 years before the occurrence Abdul Ghafoor and his family had shifted to Peshawar. His daughter Mst. Nasreen P. W. Was married to his brother's son, Asghar. His other daughter Mst. Shafqat was married to one Mahmood of the same village. Since the relations between P. W. Nasreen and her husband Asghar accused got strained, she wrote a letter to her father complain--ing, about her husband; maltreatment, upon which her father Abdul Gafoor (deceased) and his were Mst. Almas P. W. Came over to the house of her daughter in Chak 4. District Sheikhupura. P. W.
6. Haji Saeed Ahmad (informant) a local Zimindar assisted Abdul Ghafoor in settling the matter. He called Karam Din father of Asghar to his house in the evening preceding the day of occurrence. It was settled that Abdul Ghafoor would take his daughter Mst. Nasreen (P. W.) with him to Peshawar the following morning. Karam Din said that they would send the divorce to her by post. On the following day, i.e. 19th September, 1977 at about 5.30 a.m. The deceased and his family sat in a Tonga in order to leave the village with Mst. Nasreen; at that time Abdul Ghafoor deceased and his brother Sher Muhammad P. W. Were talking to each other standing near the Tonga. Just then Asghar accused armed with a bala and Jamal Din accused armed with a sota came over raising lalkaras that they would not allow them to take away Mst. Nasreen with them. Abdul Ghafoor deceased insisted saying that the matter had already been settled. Thereafter there was an altercation between the deceased and Asghar accused. Asghar gave a bala blow on the head of Abdul Ghafoor who fell down. Jamal Din accused inflicted injuries to him and Sher Muhammad P. W. With the sota. P. W. Mst. Almas were of the deceased lay on the deceased. P. W. 6 Haji Saeed Ahmad and his son who were nearby rushed to the spot. They raised a hue and cry; they caught hold of the accused P. W. Sher Muhammad was also injured. Abdul Ghafoor died at the spot. Leaving the accused and the dead body in the custody of his son and other villagers, P. W. 6 Haji Saeed Ahmad proceeded to Police Station Nankana Sahib. On the canal bridge he met with P. W. 10 Nazir Ahmad, A. S. I. And made statement Exh. P. ... To him on the basis of which formal F. I. R. Exh. P. H./1 was recorded at the Police Station. The A. S. I. Went to the spot, prepared the inquest report Exh. P. L., injury statement Exh. P. M. And despatched the dead body to the Civil Hospital for its post-mortem. P. W. Sher Muhammad was also got medically examined. Investigating Officer arrested the accused. They had injuries on them.
He got them examined. The accused got recovered their weapon bala P. 4 and Sota P. 5, which were taken into possession vide Memo. Exh. P. I. And P. J. Respectively.
3. Since Dr. Abdur Razzaq had proceeded to Libya, therefore secondary evidence was led to prove the post-mortem report through P. W. 5 Sardar Ali, Dispenser who had worked under the doctor. Dr. Abdur Razzaq had found the following injuries on the dead body of Abdul Ghafoor
(1) Abrasion 1--" x --'' on the front of the left leg lower part.
(2) Abrasion 3" on the left leg, in the area of 3" x 2" on the front of the left leg between an area of 3' x 2".
(3) Abrasion ----- x --" on the left side of the forehead --" above the eyebrow.
(4) A lacerated wound --" x 1/8' x 1/8" on the right side of the forehead 1-- above the right eyebrow.
(5) A lacerated wound 2--" x --" x bone deep on the frontal bone 3" above the left eyebrow. There is subdued haemorrhage. No fracture of the skull. No haemorrhage at the base of the skull."
4. Same doctor examined the two accused on 20th September, 1977. Jamal Din had a lacerated wound --" x 1/8" x 1/8" on the left side of the frontal bone and two abrasions. Asghar had a lacerated wound 1" x 1' x 1/8" on the left eyebrow. These injuries were caused by blunt weapons.
5. Both accused denied guilt and ascribed the case to enmity. Explaining their injuries, they said that they were beaten by the Police as it wanted to extort a confession from them. Both led no evidence in defence.
6. Trial Court came to the conclusion that the facts of the case did not attract the provision of section 34, P. P. C. Because it was the prosecution case itself that the accused only intended to restrain the deceased from taking Mst. Nasreen with him. It, therefore, found each accused liable for the part played by him. Since Jamal Din had caused simple injuries with a blunt weapon to the deceased and that too on the non-vital part of the body, he was, therefore, convicted under section 323. P. P. C. As Asghar accused was responsible, for, the fatal injury, he was convicted under section 302, P. P. C.
7. Criticising the finding of the trial Court, learned counsel for the appellants contended that the prosecution witnesses had tried to conceal the injuries of the accused which showed that the prosecution had not come out with the whole truth. It was next contended that the presence of the eye-witnesses at the place of occurrence was doubtful because the were and the daughter of the deceased were said to be sitting in the Tonga, but none of them tried to stop the accused and they bore no injuries. Learned counsel tried to build up a case that the place of occurrence was different from the one as alleged by the prosecution. I see no force in this submission. The Investigating officer took the blood-stained earth from the place of occurrence which was not far away from the house of the informant. I have no reason to doubt the testimony of the informant who is a disinterested witness local Zimindar. He even tried to settle the dispute between the parties. The incident of attack is also supported by the widow of the deceased and his daughter Mst. Nasreen who were sitting in the Tonga at that time. The fact that they were not injured showed that the occurrence did not take long and it is in the evidence that the were of the deceased came down and lay on her husband to protect him, but the attack was over by that time. P. W. Sher Muhammad, brother of the deceased, who was also present, has supported the prosecution case.
8. To my mind the sole question for determination in this appeal would be whether there were circumstances appearing in the evidence of the case to show that the occurrence teas sudden and unpremeditated. It may be said here that even the trial Court thought of this and came to the conclusion that section 34 had no application because the accused only had the intention to restrain the deceased from taking away Mst. Nasreen were of Asghar. I agree with this conclusion arrived at by the trial Court. I am further of the view that in the light of this observation, trial Court should have assessed the entire evidence minutely and not stopped at that. It is .To be found in the evidence of the informant that there was an altercation and exchange of abuses between the deceased on one side and Asghar and his brother on the other. Admittedly, the injuries to the accused are not of serious nature, they have nevertheless been concealed by the prosecution.
These circumstances indicate a fight. Even the choice of weapons, such as bala and sota, also indicate that there was a sudden flare-up. Moreover, Asghar was not present in the meeting where it was decided that Mst. Nasreen would be divorced and taken away by her father in the morning.
Being her husband, he was justified in causing resistance but to a limited extent. The whole thing flared-up and gave rise to an altercation and exchange of abuses. It is noteworthy that the widow of the deceased and his daughter tried to make improvement at the trial by introducing incitement by Abdul Ghafoor to Asghar. They were, however, confronted with their previous statements where they had not mentioned it. No doubt, the accused have denied the occurrence and attributed the injuries suffered by them to Police torture, however as observed earlier, the prosecution evidence itself shows that it was a case of unpremeditated and a sudden attack over the taking away of Asghar's were by the deceased without his consent and thereafter an altercation took place and abuses were exchanged. Under these circumstances the whole complexion of the case would change and the offence would be one under section 304, Part I, P. P. C. And not under section 302, P.
P. C. I, therefore, accept the appeal to this extent and alter the conviction of Asghar to that under section .304, Part I and reduce his sentence to seven years' R. I. The sentence of fine of Rs. 5,000 is maintained. Fine if realised, shall be paid to the heirs of the deceased.
The conviction of Jamal Din under section 323, P. P. C. Is maintained. In so far as his sentence is concerned, keeping in view his period of custody during the trial and the one served by him before he was bailed out, I reduce his sentence to the period already undergone by him. The sentence of fine of Rs. 1,000 is maintained. Since he is on bail, he will be discharged of his bail bond. He will pay the fine within two months from today, which will go to the heirs of the deceased.