This Criminal Appeal (No. 1.28 of 1979) arises from the judgment of the learned Sessions Judge, Muzaffargarh, whereby he, on 25-1-1979, convicted (i) Inayat Ullah aged 35 years and (ii)
Muhammad Shafi aged 60 years, appellants under section 302/34, P. P. C. For causing the death of Nasir-ud-Din aged 60 years and sentenced each of them to imprisonment for life and under section 544-A, Cr. P. C. (as stated in the judgment) a fine of Rs. 5,000, or in default thereof, to further R.
1. For six months each with the direction that whole of this amount, if recovered, will be paid to the legal heirs of the deceased. Muhammad Yasin appellant aged 15 years was convicted under section 325, P P. C for causing grievous hurt to Abdul Sattar P. W. 8 (son of the deceased) and sentenced to two years' R. I. And Muhammad Jamil appellant aged 14 years was convicted under section 324, P. P. C. For causing hurt with hatchet to Mst. Zainab Bibi P. W. 9 (widow of the deceased) and sentenced to one year R. I. The complainant has filed Criminal Revision (No. 2265 of 1979) for the enhancement of the sentence awarded to the appellants. I propose to dispose of the appeal as well as the revision petition by a single judgment.
2. The occurrence took place on 22-6-1978 at 7.41 a.m. In Killa No. 103/1 near a watercourse in the area of Chak No. 295/T. D. A. Of Police Station, Leiah.
3. The First Information Report is the statement Exh. P. J. Of Abdul Sattar P. W. 8. (son of the deceased) recorded by Muzaffar Rashid S. I., P. W. 12 in the Health Centre Chowk Aazarn at 2-00 p.m. On 22-6-1978. The distance between the place of occurrence and Health Centre, Chowk Aazam has not been brought on the record. The formal F. I. R. P. J./1 was recorded by Muhammad Yousaf Moharrar Constable P. W. 6 at 3-00 p.m. On the same day at Police Station, Leiah. The distance between the place of occurrence and the Police Station, Leiah is 29 miles.
MOTIVE
4. It is a case of no motive. The occurrence took place over a turn of water. It is alleged in the F. I. R.
That over a turn of water, Inayat Ullah appellant and Nasar-ur-Din deceased exchanged the abuses and thereupon Inayat Ullah appellant opened the attack.
STORY OF THE PROSECUTION
5. The prosecution case as stated by Abdul Sattar P. W. 8 in the F.I.R. Exh. P. J. In brief is that at the time of occurrence i.e. At 7-41 a.m. It was their turn of water. He with his father Nasar-ud-Din deceased was present at Nakka in order to irrigate their land. The appellants came there. Inayat Ullah appellant declared that the deceased could not divert the water because his (Inayat Ullah) turn had not finished. The deceased tried to pursuade him but Inayat Ullah abused the deceased and in return the deceased also abused him. Thereupon, Inayat Ullah gave a wahola blow on the head of the deceased from its wrong side. Thereafter Muhammad Shafi gave a kassi blow from its wrong side on the head of the deceased. Inayat Ullah had been giving wahola blow to the deceased. It is stated that when he (Abdul Sattar) tried to rescue his father, Muhammad Shafi injured him by giving kassi blow from its wrong side and Muhammad Yasin caused injury with hatchet on his arm. It is further stated that the alarm attracted Mst. Zainab Bibi widow of the deceased to the spot and when she attempted to rescue the deceased, Muhammad Jamil appellant gave a hatchet blow on her head. The occurrence was seen by Khushi Muhammad and Ghulam Muhammad. It is stated that after the occurrence, Nasar-ud-Din in his injured condition was brought to the Health Centre Chowk Aazam by Abdul Sattar and others where he was medically examined by Dr. Abdul Hamid Chughtai P. W. 1 at 11.30 a.m. And the following injuries were found on his person :-
(1) Lacerated wound between right temporal and'frontal region 2' x 1/4' scalp deep. V r`
(2) A lacerted wound crossing over the first wound vertically 2' X 1/2' scalp deed.
(3) Two lacerated wounds at vault of skull right side. (A) 1/2" X 1/4' scalp deep.
(B) 1" X 1 /2' scalp deep.
(4) Swelling with echymosis of right eye involving the right temporal region and maxillary region, and having heavily bleeding through right ear.
(5) A lacerated wound 1/3" x 1/4' x muscle deep at the right fore-arm middle one third region laterally.
All the injuries in the opinion of the doctor were caused by blunt weapon within a duration of 4 to 6 hours.
6. On the same day, the doctor examined Abdul Sattar injured and found the following injuries on his person :-
(1) A lacerated wound at forehead middle part 3/4' X 1/4' s scalp deep.
(2) A lacerated wound at the right side between temporal and occipital region 3/4' x 1/8' skin deep.
(3) An incised wound 1' x 1/2" deep to deep fascia on the left forearm upper one-third region laterally.
(4) A contusion mark at the right scapular region 4" a 1/2'.
(5) An abrasion on the right side of the back upper region 3/4' X 1/6'.
(6) Swelling with deformity of right little finger with crepitation of first phalanx at the base.
Injuries Nos. 1 to 5 were simple whereas Injury No. 6 was grievous. Injury No. 3 was caused by the sharp-edged weapon and the rest were of blunt weapon with a duration of 4 to 6 hours.
7. On the same day the doctor examined Mst. Zainab Bibi and found the following injury on her person :- "An incised wound at left forehead running obliquely 1 --x 1/3' x skin deep cutting superificial and deep fascia."
The injury was simple and caused with sharp-edged weapon within as duration of 4 to 6 hours.
8.. Nasar-ud-Din succumbed to the injuries in the Health Centre at about 12 noon. Dr. Abdul Hamid Chughtai P. W. 1 informed the S. H. O. Through rukka Exh. P. D. Whereupon Sh. Muzaffar Rashid S. I., P.
W. 12 reached the Health Centre and recorded the F. I. R. i. e. The statement c)f Abdul Sattar Exh, P. J.
At 2-00 p.m. On the same day.
INVESTLOA71ON
9. The statement Exh. P. J. Was sent to the police station through Shaista Khan Constable for the formal registration of the F. I. R. The S. H. O. P. W. 12 prepared the inquest report and sent the dead body for post-mortem examination under the escort of Muhammad Shafi Foot Constable P. W. 3 to the mortuary. Thereaft6t be went to the spot, took into possession the blood-stained earth and made it into a sealed parcel. Hoe arrested Inayat Ullah, Muhammad Yasin and Muhammad Jamil accused on 23-6-1978 and Muhammad Shafi was arrested by him on 25-6-1978 On 26-6-1978 Inayat Ullah appellant while in Police custody led to the recovery of blood-stained wahola P. 2.
From the roof of his cattle-shed which was taken into possession vide memo P. L. And was made into a sealed parcel. Muhammad Yasin appellant led to the recovery of blood--stained kulhari P. 1. from a sugarcane field which was taken into possession vide memo. Exh. P. K. And made into a sealed parcel. Muhammad Jamil accused got recovered kulhari P. 3, from a heap ruri from the Northern side of his residential house which was made into a sealed parcel vide memo Exh. P.M. On 26-7-1978, Muhammad Shafi appellant got recovered blood-stained kassi P.
4. From his house which was taken into possession vide Memo. P.M. And the same was made into a sealed parcel. On their arrest, Inayat Ullah and Muhammad Yasin were found inured. The S. H. O. Prepared their injury statements Exhs. P. S. And P. T. Respectively and got them medically examined.
POST-MORTEM EXAMINATION
10. Dr. Manzoor Ahmad Malik P. W. 2 conducted the post-mortem examination of the dead body of Nasir-ud-Din and on external examination found the same injuries as stated by Dr. Abdul Hamid Chaughtai. On interal examination he found that the frontal bone of head was fractured. The membranes of the brain were congested at the site of Injuries Nos. I and 2. Both lungs were decongested. The heart was empty. The blood vessels were cut in the line of injuries. The stomach contained some fluid and food particles. The small intestines contained semi-digested food and gas. The large intestines contained faecal matter and gas. The liver was decongested. The bladder contained about three ounces of urine. All the other organs were normal and healthy. In his opinion the death occurred as a result of injuries especially Injuries Nos. 1 and 2 which caused the fracture of skull, profused haemorrhage and shock.' All the injuries were inflicted with blunt weapon and were sufficient to cause death in the ordinary course of nature. The injuries were ante mortem. The probable time between injuries and death was about four hours and between death and post- mortem examination was about six hours.
MEDICAL EXAMINATION OP INAYAT ULLAH AND MUHAMMAD YASIN APPELLANTS
11. On 23-6-1978, at 9. a.m. Dr. Manzoor Ahmad Malik P. W. 2 examined Inayat Ullah appellant and found the following injuries on his person :-
(l) Contusion 2' x 1' on the lateral part of the back of right palm.
(2) Contusion 2' x 1" on the lower part of the right fore-arm., Swelling was present.
(3) Contusion 3' x 1" on the right scapula region on its medical aspect.
(4) Contusion 1" x 1/2" on the back of right shoulder.
(5) Contusion 2' x 1' on the antero lateral aspect of the right shoulder.
All the injuries were found simple, caused with blunt weapon within a duration of 20 to 28 hours of the examination.
12. On the same day at 9-15 a.m. The doctor examined Muhammad Yasin appellant and found the following injuries on his person :-
(1) A lacerated wound 1/3' x 1/4' x skin deep in the frontal region of head.
(2) Contusion 2' x 1' on the back of the left elbow.
Both the injuries were simple and caused by blunt weapon within 24 to 28 hours of the examination.
13. In order to bring home the guilt to the appellants, the prosecution relied upon the following categories of evidence :--
1. Ocular.-Supported by-
(i) Abdul Sattar P. W. 8 son of the deceased;
(ii) Mst. Zainab Bibi P. W. 9 widow of the deceased; and
(iii) Khushi Muhammad P. W. 10-not related but disbelieved by the trial Court vide para. 16 of its judgment.
It should be noted that Ghulam Muhammad an alleged eye-witness mentioned in the F. I. R. Was given up as unnecessary.
2. Recoveries: Inayat Ullah, Muhammad Yasin and Muhammad Jamil appellants were arrested on 23-6-1979 and Muhammad Shafi was arrested on 25-6-1979 as stated by Sh. Muzaffar Rashid P. W. 12:
(i) From Inayat Ullah.-On 26-6-1978, Inayat Ullah got recovered blood--stained wahola P. 2 from his cattle-shed vide memo. P. L. Attested by Rehmat Ullah P. W. 7, and Nazir Ahmad not produced, given up as unnecessary.
(ii) .From Muhammad Yasin.-On the same day before the same witnesses he got recovered blood- stained hatchet P. 1, from a sugarcane field which was taken into possession vide memo. P. K.
(iii) From Muhammad Jamil.-On the same day before the same witnesses, he got recovered blood-stained hatchet P.
3. From near his house which was taken into possession vide memo. P.M.
(vi) From Muhammad Shafi.-On 27-6-1978, he got recovered blood--stained hatchet P.
4. From his kotha which was taken into possession vide memo. P. H., attested by the same witnesses.
All these recoveries were effected by Muzaffar Rashid S. I. P. W.
12. Serologist Report Exb. P. V. Shows that all these weapons were stained with human blood. It is, however to be noted that these recoveries have been disbelieved by the learned Sessions Judge in para. 17 of the judgment.
DEFENCE CASE
14. Muhammad Shafi and Muhammad Jamil have denied all the incriminating circumstances, and stated that they have been involved in the case due to enmity. Muhammad Yasin in his statement recorded under section 342, Cr. P. C. Has admitted that their turn of water was to finish at 7-41 a.m.
He took the following plea in answer to question No. 24:- "I alone was watering my field that Nasar-ud-Din and Abdul Sattar had arrived at 7 a.m. And had cut the water for their field. I exhorted them that as till that time their warri had not arrived they should not have drawn the water. Nasar-ud-Din and Sattar said that they would forcibly draw the water. Nasar-ud-Din and Sattar abused me and Nasar-ud-Din gave a kassi blow from its wrong side at my head. Thereafter Abdul Sattar gave me a kulhari blow from its wrong side at my left arm.
The blood came out from my injuries and when fell down my sister raised hue and cry upon which my father Inayat and Bashir arrived. Inayat preceded ahead upon which Nasar-ud-Din gave a kassi blow from its wrong side at the head of my father Inayat. Basbir made an attempt to rescue my father and as such gave a wahola blow to Nasar-ud-Din. Abdul Sattar went ahead towards my father Inayat who injured each other."
15. Inayat Ullah in his statement recorded under section 342, Cr. P. C. Has almost adopted the same plea. The appellants did not produce any evidence in their defence. Inayat Ullah, however, tendered in evidence School Leaving Certificate of Muhammad Yasin Exh. D. 1 to prove the age and a copy of Khasra Girdawari of Kharif 1978 of Chak No. 295 T. D. A. Comprising of two parts (not exhibited).
16. In order to prove its case, the prosecution examined as many as 12 witnesses.
P. W.
1. Dr. Abdul Hamid Chaughtai.-He examined Nasar-ud-Din deceased in his injured condition and also examined Abdul Sattar and Mst. Zainab Bibi before the registration of the case.
P. W.
2. Dr. Manzoor Ahmad Malik.-He conducted post-mortem examination on the dead body of Nasar-ud-Din deceased and also examined Inayat Ullah and Muhammad Yasin appellants.
P. W.
3. Muhammad Shafi, Foot Constable.-He has escorted the dead body of Nasar-ud-Din from the Health Centre Chowk Aazam to mortuary at Leiah.
P. W.
4. Bashir Ahmad Head Constable.-He kept the sealed parcels in the malkhana intact and handed over the same to Spain Gul F. C. For transmission to the office of the Chemical Examiner. .
P. W.
5. Abdul Ghafoor Patwari.-He prepared the site plan at the instance of Police and pointing out of the witnesses.
P. W.
6. Muhammad Yousaf Head Constable.-He recorded formal F. I. R. Exh. P. J./1.
P. W.
7. Rehmat Ali.-He supported the recoveries of the weapons from the appellants.
P. W.
8. Abdul Sattar P. W. 9 Mst. Zainab Bibi and P. W. 10 Khushf Muhammad.-They are eye- witnesses and have been given the ocular account of the occurrence. Abdul Sattar P. W. 8 has except, for some insignificant improvements, omissions, almost given the same version as given by him in the F. I. R. As stated in para No. 5 of the judgment. He is an injured witness. Mst. Zainab Bibi P.
W. 9 and Khushi Muhammad P. W. 10 had supported him on all material particulars. Mst. Zainab Bibi has given the direct evidence concerning the commission of the crime and she is also an injured witness.
P. W.
11. Spain Gul, Fcot Constable.-He took the sealed parcels to the office of the Chemical Examiner.
P. W.
12. Sh. Muzaffar Rashid, S. L-He recorded the F. I. R. Statements of the witnesses and effected the recoveries from the appellants..
17. I have gone through the record of the case and have heard the learned counsel for the parties.
For the appellants, it has been contended-
(i) that the F. I. R. Having not been recorded at the Police Station, the inference would be that it was recorded after preliminary investigation and deliberations;
(ii) that Abdul. Sattar and Mst. Zainab Bibi being son and widow of the deceased respectively are the interested witnesses;
(iii) that Abdul Sattar and Mst. Zainab Bibi have suppressed the injuries found on the persons of Inayat Ullah and Muhammad Yasin and as such are not reliable witnesses;
(iv) that at least there is a reasonable, possibility of the defence version as given by Inayat Ullah and Muhammad Yasin appellants being true;
(v) that in the alternative it was not a case of murder punishable under section 302, P. P. C.
18. The learned Assistant Advocate-General assisted by the learned counsel for the complainant contended that prosecution has proved its case beyond reasonable doubt, the ocular evidence is worth reliance and the plea taken by the accused is false one and the same cannot be accepted an the circumstances of the case.
19. Keeping in mind the rules of the appreciation of evidence laid down by the superior Courts for the safe administration of justice, I consider it appropriate to discuss the prosecution evidence first in odder to come to an independent finding on the truth or falsehood of the prosecution case and the credibility of its ocular testimony ,because if the Court disbelieves the case for the prosecution or excludes the ocular evidence then the statement of the appellant would have to be accepted in its entirety. In case, the ocular testimony is not discarded I will then examine the two rival cases placing in juxtaposition and will review the entire evidence and the circumstances at the close before arriving at a conclusion regarding the truth or falsity of the defence plea and will esteem its total effect in relation to two questions :-
(i) Is the plea of the appellants satisfactorily established by the evidence and the circumstances appearing in the case?
(ii) If the answer be in the negative, is there yet a reasonable possibility that their plea might be true so as to cast a reasonable doubt upon the prosecution case?
20. While discussing the prosecution case, I start with the F. I. R. The occurrence took place at 7-40 a.m. The deceased in serious condition was straightaway taken to Health Centre, Chowk Azam by Abdul Sattar (P. W. 8), Mst. Zainab Bibi injured, witnesses and others. The doctor examined them at 11-30 a.m. Nasar-ud-Din died at 12 noon. Thereupon, the doctor informed the Police vide rukka P. D.
Sh. Muzaffar Rashid P. W. 12 reached the Health Centre and recorded statement of Abdul Sattar P.
W. 8 Exh. P: J. At 2. p.m. The conduct of the complainant of taking the injured straightaway to the Health Centre in the circumstances does not run counter to the natural probability especially when the police station was at a distance of 29 miles away from the spot. During the cross--examination, the time, place and manner in which the F. I. R. Purports to have been written has not been challenged. The contention of the learned counsel that the F. I. R. Was recorded after preliminary investigation or due deliberations was not even suggested to any one in the cross-examination.
Therefore, the mere fact that F.
1. R. Was recorded in the Health Centre and not at the Police Station would not give rise to an irresistible conclusion that the F. I. R. Was in fact written after preliminary investigation. I find that statement P. J., the F. I. R., is a genuine document and was actually written in the manner as it purports to have been. It is a case of prompt F. I. R. And this F. I. R. May be used to corroborate its maker i.e. Abdul Sattar P. W.
OCULAR EVIDENCE
21. Having appreciated the ocular testimony in the light of the observations made by the Supreme Court in a case reported as Niaz v. State and Muhammad Hussain v. State PLD 1960 SC 387which reads as follows :- "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused with--out corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration for, substitution is a thing of rare occurrence and cannot: be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it cart of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence."
22. I find that presence of Abdul Sattar and Mst. Zainab Bibi is proved by fact of injuries on their persons. The presence of Abdul Sattar P W. 8 has even been admitted by Inayat Ullah and Muhammad Yasin appellants. It being a case of daylight occurrence there could be no doubt as to the identification of the appellants who being residents of the same vicinity were already known to the eye-witnesses. Having carefully appreciated the third question whether the witnesses are reliable or not I find that the two eye-witnesses, namely Abdul Sattar and Mst. Zainab Bibi are entitled to be believed for the reasons :-
(i) no doubt they are related witnesses but relationship per se would not make their testimony unreliable unless motivated by some animus or rancour. No enmity or ill-will has even been suggested to the witnesses. Abdul Sattar P. W. In cross-examination has stated that "we had no previous enmity with the accused. It was the first dispute which ensued on the question of warri of water". Mst.. Zainab Bibi P. W. 9 in her cross-examination has stated that "prior to the occurrence, if occasion arose, we used to visit the house of Inaya Ullah accused". I do not find any motive with these two witness", to falsely involve the appellants and they therefore, cannot be termed as interested witnesses as contended by the learned counsel for the appellants.
(ii) They have given evidence in a very straight forward manner. They have successfully stood in the test of cross-examination except for immaterial and insignificant omissions or improvements here and there. It is to be noted that their statements were recorded after about seven months of the occurrence and the fate of the criminal case would not depend on such like vague discrepancies.
(iii) So far as the allegations of suppression of the injuries found on the persons of the appellants is concerned, no doubt, these injuries have not been explained by the two witnesses but the evidence which is otherwise reliable cannot be discarded altogether for this infirmity and the Court would not be debarred from drawing inferences properly flowing from the evidence and circumstances.
Their evidence, therefore, cannot be thrown out on this short objection.
(iv) I find that the number of the appellants (four persons) is not out of the proportion to the nature of enterprize and the result produced i.e. One person lost life and two received injuries. In all they received 12 injuries including three grievous injuries, two injuries found on the person of the deceased and one on the persons of Abdul Sattar P. W.
23. For the foregiong reasons I am of the view. That the two witnesses, namely Abdul Sattar and Mst.
Zainab Bibi who were admittedly present and were in a position to identify the assailants are reliable witnesses. Since the number of the accused and the injuries commensurate, the conviction may falsely be based even on their uncorroborated testimony and in case, the prudence as a matter of abundant caution requires any corroboration, the same is also available in the shape of additional circumstances :-.
(i) The prompt F. I. R. Corroborates Abdul Sattar P. W. 8;
(ii) The number of the appellants named as culprits is consistent with the kind of the crime committed and the appellants being the land--lords and the tenants were expected to join attack over the turn of water.
The circumstances tend to satisfy the Court that the witnesses have spoken truth.
24. Since the ocular testimony has not been discarded I proceed to examine two rival cases by placing in juxtaposition arid review the entire material placed on record including the statements of the appellants, the attending circumstances for arriving at a conclusion regarding the truth and falsity of defence plea and will esteem its total effect with relation to the two questions as formulated in para. No. 19 of this judgment.
25. In order to resolve these questions, I would like to reproduce plea in the words of Muhammad Yasin appellant:- "I alone was watering my field that. Nasar-ud-Din and Abdul Sattar bad arrived at 7 a.m. And had cut the water for their field. I exhorted them that as till that time their warri had not arrived they should not have drawn the water. Nasar-ud-Din and Sattar said that they would-farcibly draw the water. Nasar-ud-Din and Sattar abused me and Nasar-ud-Din gave a kassi blow from its wrong side at my head. Thereafter Abdul Sattar gave me a kulhari blow from its wrong side at my left arm.
The blood came out from my injuries and when I fell down my sister raised hue and cry upon which my father Inayat and Bashir arrived. Inayat preceded ahead upon which Nasar-ud-Din gave a kassl blow from its wrong side at the head of my father Inayat. Bashir made an attempt to rescue my father- and as such gave a wahola blow to Nasar-ud-Din. Abdul Sattar went ahead towards my father Inayat who injured each other."
26. Now I proceed to answer the first question; "Is the plea of the appellants satisfactorily established by evidence and the circumstances appearing in the case?
It transpires from the statement of the accused as stated above that the entire occurrence was seen by Mst. Noor Safia the younger sister of Muhammad Yasin appellant and that on her hue and cry one Bashir had also come to the spot and had seen the occurrence. In this view of the matter, the appellants were in a position to produce ocular evidence in their defence, but for the reasons best known to them, they declined to produce Mst. Noor Safia and Bashir in support of their plea. I have considered the circumstances appearing in the case and find that those too do not satisfactorily established the plea taken by the appellants. For these reasons the first question as mentioned above is answered in negative.
27. Now I deal with the second question :-- "Is there yet a reasonable possibility that their plea might be true so as to cause a reasonable doubt upon the prosecution case?
(i) According to the appellants, Nasar-ud-Din deceased was injured by one Bashir who has not been implicated at all. By making this statement they in fact have raised a plea of substitution for which no foundation whatsoever has been laid down. In the circumstances, there is no reasonable possibility of this version being true.
(ii) So far as the time of occurrence is concerned, that is really important for the determination of right of private defence of property. The admitted position is that the turn of water of Inayat Ullah appellant commences at 1-20 a.m. And ends at 7-40 a.m. Thereafter, starts the "ward" of Nasar- ud-Din deceased at 7-41 a.m. And ends at 9-41 a.m. The defence case that the deceased and Abdul Sattar had reached at 7 a.m. And had cut the water for their land would not be in consonance with the natural probabilities as there was no earthly reason for the deceased to forcibly cut the water only 41 minutes before their own turn. They could have easily waited till 7-00 a.m. The time of occurrence could have been proved by producing Mst. Safia and Bashir but the same was not done. I am of the considered view that at the time of occurrence it was the warri of the deceased and no right of self defence had accrued to the appellants. In this view of the matter, the possibility of any reaction on the prosecution case stands altogether excluded. The second question is also answered in negative.
28. For the foregoing reasons I am of the opinion that prosecution have proved its case beyond reasonable doubt. Its ocular evidence is in consonance with the probabilities its material fits in with the other evidence and circumstances of the case and it inspires confidence. 1, therefore, hold that it was the turn of water of the deceased at the time of occurrence, Inayat Ullah appellant had opened the attack without any justification and he was the aggressor.
29. Muhammad Shafi appellant, the tenant of Inayat Ullah, by giving a kassi blow from its wrong side at the head of the deceased had shared the common intention to kill the deceased which of course had developed at the spur of moment during the occurrence. It is to be noted that Muhammad Shafi had actively participated in the occurrence and had even injured Abdul Sattar P; W.
30. The question whether the offence as committed by the appellants Muhammad Shafi and Inayat Ullah falls under section 302/34, P. P. C. Or any other section of the Penal Code presents the least difficulty. Where a person so aims a blow at another at the vital part (head) with sufficient force then that person could be presumed to have had no intention but to kill and if the case is not taken out of the purview of section 300, P. P. C. For some other reasons the offence established would be one' of murder punishable under section 302/34, P. P. C. The upshot of the discussion is that the conviction and sentence as awarded to Inayat Ullah and Muhammad Shafi are maintained. The appeal to their extent is dismissed in toto.
31. So far as Muhammad Yasin appellant is concerned, since the grievous injury found on the person of Abdul Sattar has not been specifically attributed to him, his conviction and sentence under section 325, P. P. C. Is set aside and he is convicted under section 323, P. P. C. For causing hurt to Abdul Sattar P. W. So far as the question of sentence is concerned, I find that at the time of occurrence he was of 14/15 years of age, he remained in Jail for some time, I therefore, sentence him to a fine of Rs. 1,000 only in default thereof to one year R.
1. Fine if recovered to be paid to Abdul Sattar as compensation.
32. So far as Muhammad Jamil appellant is concerned, he has been rightly convicted under section 324, P. P. C. On the question of sentence I find that at the time of occurrence he was 1-3 years of age. He is therefore, sentenced to a fine of Rs. 500 or in default thereof, three months R. 1 Fine if recovered should be paid to Mst. Zainab Bibi P. W. The fine would be paid by Muhammad Yasin and Muhammad Jamil within one month this order. With this modification, the appeal in cases of Muhammad Yasin and Muhammad Jamil is dismissed.
33. So far as the revision filed by the complainant is concerned, I find that the learned trial Court while convicting Inayat Ullah and Muhammad Shafi under section 302/34, P. P. C. Has given no reasons for awarding the lesser penalty which the Court was bound to give under section 367(5), Cr. P. C.
34. Since it was a sudden affair and the parties had exchanged abuses before the infliction of injuries I am of the opinion that the lesser penalty would meet the ends of justice. With these observations, the revision petition is dismissed.