The appellants, Rehmat Ali son of Budha Khan, aged 55 years, Muhammad Sadiq son of Rehmat Ali, aged 25 years, Bhattis by caste, residents of Chak No. 12/T. D. A., Police Station Darya Khan, Tehsil Bhakkar, District Mianwali, were tried, convicted and sentenced by the learned Sessions Judge, Mianwali, vide his judgment dated 9th March, 1980 to life imprisonment each under section 302, P.
P. C. And a fine of Rs. 1,000 each, in default to undergo further one year R. I. Each. The appellants have filed this appeal against their conviction and sentences.
2. The F. I. R. (Exh. P. M.) was lodged by Abdul Ghafar (P. W. 8), son of the deceased, at Police Station Darya Khan at 2-30 a. m. On 11th May, 1979. The occurrence took place at Khuftanwela on 10th May, 1979.
3. Briefly the facts of the case as narrated in the F. I. R. Are that deceased Abdul Sattar had taken 15 acres of land from one Lal on lease and had started living in his Ihata. On 10th May, 1979 at about evening time Abdul Sattar tethered his cattle with the trees near the 1hata. Rehmat Ali appellant, who is real brother of said Lal, and Muhammad Sadiq appellant, his son, came there and asked Abdul Sattar to vacate the Ihata of Lal and not to tether the cattle there again. On Abdul Sattar's reply that he would not vacate the Ihata unless asked by Lal, the parties exchanged abuses.
Muhammado and Hamid P. Ws. (both not produced) separated the parties. The appellants, however, are alleged to have threatened the deceased with dire consequences while leaving the place. It is alleged that on the same day at Khuftanwela when it was moonlit night Abdul Ghafar (P.
W. 8) complainant, Mst. Maqsooda Bibi (P. W. 9), were of the deceased, Dost Muhammad, brother of the deceased, were present in the house with Abdul Sattar deceased, suddenly the appellants appeared armed with sotas and they untethered the cattle of the deceased and told the deceased that they would get vacated the Ihata and that they would teach them a lesson for abuses.
Rehmat Ali appellant is alleged to have given two Sota blows to the deceased which injured him on the back. Muhammad Sadiq appellant is stated to have given two Sota blows on the head of the deceased. Abdul Sattar fell down unconscious. Muhammado son of Kora P. W. (given up) also arrived after hearing the noise. The occurrence was witnessed by the complainant Abdul Ghafar (P.
W. 8), Dost Muhammad, brother of the deceased, (given up P. W.), Mst. Maqsooda Bibi (P. W. 9), widow of the deceased, and the abovesaid Muhammado (given up P. W.). It is further stated that the complainant in order to save his father gave simple injuries to Muhammad Sadiq and Rehmat Ali appellants. Abdul Sattar was being taken to Civil Hospital, Darya Khan, but he expired on the way. The complainant leaving the dead body in the custody of Muhammad Ismail (P. W. 5), his uncle, went to Police Station, Darya Khan and lodged the F. I. R. (Exh. P. M.) which was recorded by Muhammad Bashir, S. L/S. H. O. (P. W. 10).
4. Muhammad Bashir, S.I. (P. W. 10) proceeded to the place where the dead body of the deceased was lying. He examined the dead body, prepared injury statement (Exh. P. N.) and inquest report (Exh. P. Q.) and sent the dead body for post-mortem examination in the custody of Muhammad Sharif, F. C. (P. W. 1). Then he proceeded to the spot and collected blood-stained earth vide memo.
Exh. P. H. And sealed the same into a parcel. He arrested the appellants Rehmat Ali and Muhammad Sadiq, who appeared before him on the same day at 10/11 a. m. Rehmat Ali produced his stick (P. 3) and Muhammad Sadiq produced his stick (P. 4), which were taken into possession vide memos. Exhs. P. J. And P. K. Respectively. Blood-stained shirt (P. 5) of Muhammad Sadiq appellant was also taken into possession vide memo. Exh. P. L. Both the accused were found injured. The Sub-Inspector prepared their injury statements Exhs. P. D./1 and P. E /I and sent them to the hospital for medical examination in custody. He deposited the sealed parcel with the Moharrir of the Police Station. Site plans (Exhs. P. F and P. F./1) were got prepared by the Investigating Officer from Mirza Zaheeruddin, Draftsman (P. W. 4). After necessary investigation, he put up the challan in the Court.
5. The prosecution to prove its case produced Abdul Ghafar (P. W. 8.), complainant, and Mst.
Maqsooda Bibi (P. W. 9) as eye--witnesses. P. W. 8 is the son of the deceased and P. W 9 is widow of the deceased. The remaining two eye-witnesses were given up. Abdur Rashid (P. W. 6) appeared as witness of recovery of blood-stained earth from the spot. This recovery was effected by the Investigating Officer. Subedar (Retd) Khan Muhammad (P. W. 7) was produced to prove the recoveries of sotas and (P. 3 and P. 4) from the appellants and blood-stained shirt (P. 5) of Sadiq appellant. The dead body was identified by Muhammad Ismail (P. W. 5) at the time of post- mortem examination. Mirza Zahiruddin (P. W. 5) prepared the site plans (Exhs. P. F. And P. F./1).
Amanullah (P. W. 2) had taken the parcel of blood-stained earth to the office of the Chemical Examiner at Lahore.
6. Dr. Muhammad Hussain Naqvi, Medical Officer appeared as P. W.
3. He conducted the post- mortem examination on the dead body of Abdul Sattar deceased and found the following injuries:-
(1) Two contusion marks 4" x 3/4" and 3" x --" on back of left chest.
(2) There was swelling 4" x 3" on the top of head.
He observed that there was fracture of the skull on top and more on left parietal bone and less on right parietal bone. According to him, injury No. 2 was fatal and dangerous to life and death was due to this injury, which was sufficient in the ordinary course of nature to cause death.
He also examined Muhammad Sadiq appellant and recorded the following injuries:-
(1) A lacerated wound, 3/4" x --" x bone deep on the top of head.
(2) Contusion mark 1" x --" on right scapular region.
Both the injuries were simple.
He also examined Rehmat Ali appellant on the same day and recorded the following injuries:-
(1) A contusion mark 2" x --" on the lower part of left chest.
(2) An abrasion --" x 1/6" on the right scapular region.
(3) Complained of pain on right forearm.
The injuries were found simple. Muhammad Sadiq was examined at 2-30 p. m. And Rehmat Ali at 2-40 p. m. On 11May, 1979. The injuries were found to have been caused within the duration of about 12 to 18 hours. In cross-examination, he has admitted that "injury No. 1 to Muhammad Sadiq would have resulted in haemorrhage". He also admitted in cross-examination that the possibility of injury No. 2 on the deceased having been the result of one blow exists.
7. The accused were charged and they pleaded that they acted in self-defence. Rehmat Ali appellant in answer to Question No. 7 in his statement dated 6th March. 1980 stated as under:- "Sadiq went to the trees and asked the deceased to untether his cattle, he refused and Mst.
Moqsoodan P. W. Started abusing him, Sadiq untethered the cattle whereupon the deceased injured him with a stick, the alarm also attracted me to the spot, the deceased also injured me and 1 picking up a stick lying nearby injured him."
Muhammad Sadiq appellant in answer to Question No. 7, in his statement dated 6th March, 1980 stated as under:- "At Khuftanwela I went out to ease myself, the cattle of the deceased were still tied with the trees, I asked him why in spite of previous requests in this behalf his cattle were still tied with the trees. On this Mst. Maqsoodan abused me and I started untethering the cattle. The deceased then reached and gave me sota blow on the head, I fell down and then he gave me a blow in the back and then I went unconscious."
He also produced photostat copy of licence of his gun Exh. D. C. And permission (Exh. D. D.) from the any to carry the gun. Rehmat Ali examined Najmal Hassan, Revenue Patwari, Halqa Chak No. II/T.
D.A. As D. W.
1. According to D, W. 1, no 1hata was allotted to Lal accor--ding to the revenue records.
He also stated that there was no four walls to the Ihata in possession of Lal.
8. The learned counsel for the appellants has, inter alia, argued that P. Ws. In this case are interested and closely related to the deceased, being son and widow, the recoveries of weapons are of no corroborative value being not blood-stained. According to him, no corroborative piece of evidence except that of the doctor is available on the file. He has argued that in view of the fact that the appellants have pleaded self-defence the only point which needs consideration is as to who- was the aggressor and that if the plea of the appellants is to be accepted, then what offence, if any, they have committed.
It has been vehemently argued that the explanation of injuries on the appellants given by the complainant does not appeal to reason because if the case of the prosecution is to be admitted that the appellants had come after having made preparation to launch an attack and to avenge the insult, they could not have meakly suffered injuries at the hand of one person, i.e. Abdul Ghafar, rather they would have caused him injuries. The fact that Abdul Ghafar P. W. Does not bear any injury is not only proof of the fact that the injuries were not suffered by the appellants at his hand but also indicates that he was not present at the, spot. The case of Rehmat Ali appellant is that the deceased had first struck Muhammad Sadiq appellant with his stick and on the alarm raised by him, he went to the spot and when the deceased gave him also injuries, he picked up a stick and injured him. The same plea has been taken by Muhammad Sadiq appellant. It may be mentioned that the houses of the deceased and the appellants are at a distance of 15 karams only from each other.
9. Having gone through the record, I find that there is no previous history of enmity between the parties, neither this is the case of any of the parties. The only incident which ever happened (if at all happened) is the one about untethering of the cattle of the deceased by the appel--lants on theth same day. The cattle used to be tethered with the trees standing nearby the house of the parties. It is a Thai area and it is -really a problem to have shady trees to tether the cattle. Having gone through the evidence minutely and the plea of the appellants, I am of the view that a dispute took place regarding tethering of cattle between the deceased and the appellants and in that heat of passion both the parties caused injuries to each other. It is not possible to hold as to who was the aggressor. The benefit of doubt in this regard would lean in favour of the appellants. Under circumstances enumerated above, I am of the view that the appellants had no intention to kill the deceased. No doubt the injuries on the head were on vital part but apparently the blow was given without any premeditation, in the heat of moment. The appellant cannot, in these circumstances, be credited with the intention of deliberately seeking out a vital part of the body. Though appellant Muhammad Sadiq did not appear to have the requisite intention to kill but he must be saddled with the knowledge that such a blow struck with dang with such a force may cause the death of the deceased. So far as Rehmat Ali appel--lant is concerned, he cannot be burdened with the common intention or knowledge of Muhammad Sadiq appellant who caused the fatal injury. He could not have the knowledge that his co-accused will cause an injury with such a force which may result in death. I would, therefore, alter the conviction and sentence for life imprisonment of the appellants under section 302, P. P. C. To a conviction and sentence under section 304, Part II, P.
P. C. As for the sentence, keeping in view the fact that Rehmat Ali had only caused simple injury, he' cannot be burdened with the knowledge of his co-accused to have caused such an injury which resulted in the death, he is sentenced to three years' R I under section 304, Part II, P. P. C.
Muhammad Sadiq appellant who has been held to have such a B knowledge which could cause death, he is sentenced to seven years' .R. I. Under section 304, Part II, P. P. C. The appeal is allowed to that extent. Order accordingly.