In a trial held by Sh. Lutuf-ur-Rehman, Additional Sessions Judge, Sahiwal, under section 302/323/34. Muhammad Jahangir son of Kala aged 30 years, Ka'a and Dona sons of Ahmad aged 80 and 75 years, respectively, and Sooba son of Sajwara aged 30 years, all Wattu by caste, residents of Chak Kamboh, Tehsil Depalpur, District Sahiwal, were convic--ted and sentenced to life imprisonment and a fine of Rs. 1,000 or in default of payment of fine to undergo further one year's R.
1. Each, on two counts, for causing the death of Imam Ali and Sakhi Muhammad deceas--ed.
Muhammad Jahangir was further convicted and sentenced to one years' R. I. And a fine of Rs. 200 or in default thereof, to suffer further three months' R. I. Under section 323, P. P. C. All the sentences were ordered to run concurrently. It was directed by the learned trial Judge that the period during which each of the accused was detained in custody, shall be deducted from the above sentences under section 382-B, Cr. P. C.
2. Muhammad Jahangir, Kala, Dona and Sooba, convicts, have.Filed separate appeals through jail i.e. Criminal Appeals Nos. 461, 462,,463 and 464 of 1980. This judgment will dispose of all these appeals.
3. The occurrence allegedly took place on 17th November, 1976 at degarwela in the area of Mauza Saidpura six miles away from Police Station Hujra. The matter was reported to the police on the same day at 8-00 p. m. By Khushi Muhammad and on that basis -F. I. R. Exh. P. O. - was recorded by Muhammad Hussain S.-I. (P. W. 15).
4. Brief facts of the case are that on tile day of uccurtence Shaukat All (P. W. 10) and Muhammad Tufail (P. W. 13) were grazing their cattle in the cotton field of Sakhi Muhammad deceased. In the meantime all the four appellants having sotis in their hands- came there alongwith their cattle to graze them. However, Muhammad Tufail P. W. Forbade them not to let loose their cattle in the cotters crop but Muhammad Jahangir appellant gave a soti blow to Muhammad Tufail on his left hand fingers and let loose the cattle in the cotton crop. Shaukat Ali P. W. Thereupon rap towards Kot Nazar Muhammad and informed Sakhi Muhammad and Imam Ali deceased about the situation.
Sakhi Muhammad and Imam Ali deceased came over to the cotton field. The complainant alongwitb others who was also present nearby, reached the spot on hearing the noise. At the time when both the deceased were busy in ousting the cattle of the appellants from the cotton field, the appellants attacked Sakhi Muhammad and Imam Ali deceased. Sooba appellant gave a sot! Blow hitting Imam Ali deceased on his head followed by another blow given by Muhammad Jahangir on the head also. Dona appellant then inflicted a soti blow on the head of Sakhi Muhammad. The soti blow given by Kala appellant also hit Sakhi Muhammad deceased on his head. Both the deceased fell on the groun,i and became unconscious. It is also stated in the F. I. R. That Sakhi Muhammad deceased had a stick with him and in self-defence he injured Muhammad Jahangir appellant. The complainant and his companion tried to intervene but they were threatened with dire consequences. Thereafter, all the appellants fled away with their sotis.
5. Initially a case under section 307/34, P. P. C. Was registered against the appellants but on the death of deceased the offence was altered to one under section 302/34, P. P. C.
6. After recording the F. I. R. Muhammad Hussain S. I. (P. W. 15) went to the hospital on learning about the death of Imam Ali and prepared his inquest report Exh. P. W. Sakhi Muhammad also died, so he also prepared his inquest report Exh. P. X. And sent the dead bodies to the mortuary for post- mortem examination. Thereafter he visited the spot and completed all the formalities as to the collection of blood--stained earth and the recording of the statements of the P. Ws. He got Muhammad Tufail P. W. Medically examined. He arrested Kala and Dona appellants, on 18th November 1976. On the next day he arrested Muhammad Jahangir appellant who was in an injured condition at that time. He got him medically examined. On 21st November, 1976 he arrested Sooba appellant. On 26th November, 1976 appellants Dona, Sooba, Kala and Muhammad Jahangir, at different times, led to the recovery of sotas P. 7, P. 8, P. 9 and P. 10, which were taken into posses-- sion vide memos. Exh. P. S., Exh. P. T., Exh. P. U., Exh. P. V. Respec--tively. He got site plans Exh. P. A. And Exh.. P. A./1 prepared from the Patwari.
7. Dr. Ehsanul Haq (P. W. 6) on 17th November, 1976 at 7-00 p. m. Medically examined Sakhi Muhammad deceased while he was alive and found the following injuries on his person :-
(1) A swelling on right temporal region and above it on the head with skin laceration 1/2" x 1/3" in it and slight colour in its middle was like contusion (1--" x 1"). Swelling was 5" x 4".
(2) A swelling on left temporal region 4--" x 3--" with contusion mark in it 2" x 1". Swelling reached upto forehead and area of head above temporal region.
Both the injuries were dangerous to life caused with a blunt weapon within the duration of nine hours.
After his death, Sakhi Muhammad deceased's post-mortem was conducted by this doctor on 19th November, 1976 and he found the above noted injuries. In his opinion these injuries were sufficient to cause death in the ordinary course of nature which resulted into the fracture of skull into pieces, internal haemorrhage of brain and shock.
This doctor on the same day at 7-20 p. m. Medically examined Imam . Ali deceased while he was alive and found the, following injuries on his person :---
(1) A contusion mark on left temporal region and left forehead and area of head just above temporal region 4" x 1'. There was swelling in that area which was 6" x 5" and there was ecchymosis in left eye lid.
(2) A swelling on right temporal region 5" x 4" and there was ecchymosis in right eye and lid.
Both the injuries were dangerous to life and were caused by blunt weapon within nine hours.
After his death post-mortem on the dead body of Imam. Ali deceased was performed by this doctor, on 19th November, 1976 and he found the same injuries on his person. In his opinion these injuries were sufficient to cause death in ordinary course of nature which resulted in the fracture of skull into pieces, internal haemorrhage of brain and shock.
He also examined Muhammad Tufail P. W. On 18th November, 1976 at 7-20 p. m. And found two .Abrasions on his fingers. Both injuries were simple in nature caused with a blunt weapon within the duration of thirty-three hours.
This doctor on 17th November, 1976 at 6-20 p. m. Medically exa--mined Muhammad Jahangir appellant and found the following injuries on his person :-
(1) A contusion mark below left eye and below left eye-lid 2" x 1".
(2) A contusion mark on nose 2" x -- " and it was mostly on left side.
(3) A tender swelling on upper lip mostly on left side.
(4) A skin laceration on back of Ist and 2nd digits of right index finger with tender swelling all over it, that was 1--" x -- ".
(5) Two skin lacerations on back of left index finger at 2nd digit 1/3" to 1/4" x 1/5" to 1/6".
(6) A skin laceration on tip of left thumb at palmer side 1/3" x 1/5".
(7) A contusion mark on back and outer side of left thigh 7" x 1".
Later on injuries Nos . 2 and 3 were declared as simple while injury -No. 4 as grievous.
8. In support of its case the prosecution relied on the following pieces of evidence :-
(i) the evidence of motive ;
(ii) the ocular testimony ;
(iii) the evidence of recoveries ; and
(iv) the medical evidence.
Shaukat Ali (P. W. 10) and Muhammad Tufail (P. W. 13) deposed as to the motive. The ocular account of the occurrence was given by Khushi Muhammad (P. W. 8), Muhammad Hanif (P. W. 9), Shaukat Ali (P. W. 10) and Muhammad Tufail (P. W. 13). The recoveries were suppor--ted by Muhammad Asghar (P. W. 14) and Muhammad Hussain S.-I. (P. W. 15).
9. All the appellants when examined under section 342, Cr. P. C. Refuted .The allegations levelled against them. They also denied the recoveries at their instance. As to their involvement in the case appel--lants Kala, Dona and Sooba, however, stated that they had been falsely implicated in the case because of their relationship with Muhammad Jahangir appellant. As to the injuries on his person appellant Muhammad Jahangir explained :-- "I was grazing my cattle in the vacant land adjacent to the land of the complainant party where there are bushes. One of the animals strayed into the cotton field of the complainant and his son Muhammad Tufail P. W. Used abusive language against the owner of the animal i.e. Myself, without naming me. I turned out the animal from the field but Muhammad Tufail P. W. Was very abusive and 1 pushed hire aside. He left the spot towards his house and shortly thereafter Sakhi Muhammad and Imam Ali came to the spot armed with sticks and they attacked me in the land just adjacent to the weld of the complain--ant. I received the injuries at the hands of Sakhi Muhammad and Imam Ali and I defended myself against them when I was under attack. The P. Ws.
Are either cloac relations of the com--plainant or his servant."
No evidence was led in defence except a report of the Medical Superintendent D. H. Q. Hospital, Sahiwal mark. 'A' and copy of the order of the Lahore High Court dated 28th July, 1979 Exh. D. D.
Tendered by Dona appellant.
10. The learned trial Judge discussed tic evidence as to motive in para. No 12 of his judgment and believed it. The ocular testimony was also accepted after the sane having been discussed at a great length in paras. 13 to 16. The recovery of the weapons o: offence, according to him, was of no use to the prosecution since the sotas were not stained with blood. He believed the medical evidence observing that it was in full conformity with the ocular testimony. He, dealt with the defence version in para. No. 21 of his judgment and rejected the plea of self-defence raised by Muhammad Jahangir appellant.
11. Appellant Muhammad Jahangir in his memorandum of appeal has taken up two positions, firstly that he alongwith 15/20 boys of the same age were grazing their cattle near the village. Both the deceased gave soti blows to his cow. When he forbade them from doing so, he was given severe beating. In order to help him and on -account of their personal grudge the son and nephew respectively of the Qutba Dogar attacked the deceased since Sakhi Muhammad decca3Ldi lwad killed the son of Qutba Dogar and secondly, that the complainant party had the apprehension that since Muhammad Jahangir was seriously injured he might die as a result of that, the complainant party to avoid the consequences of the injuries caused to Muhammad Jahangir, falsely implicated Muhammad Jahangir, his father, his uncle arid maternal-cousin. When he survived the injuries the police in their zeal to succeed in the case, challaned the appellants despite the fact that Muhammad Jahangir appellant was carried on a cot from the place of occurrence to the hospital.
He being himself injured, was not in a position to cause injuries to both the deceased. At the place of occurrence his father, uncle and maternal-cousin were not present. The Investigating Officer was presented with his medical report but he refused to register a case against the deceased because they had expired. Suba appellant has more or less taken up the same position as to the occurrence as has been taken up by Muhammad Jahangir appellant and in addition he has maintained that he is innocent.
Kala appellant has also as to the occurrence said the same but in addition he has stated that he being in extreme old age Le. 85/90 years suffering from tremor was incapable of patting the deceased to death who was 35/36 years old armed with a dang. He is innocent.
Appellant Dona in his memorandum of appeal has said that he is 80/81 years old and is almost blind. According to him, it was not possible for him to have killed the deceased who was a stout young man armed with a dang. He has attacked the prosecution version by maintaining that the prosecution story that only one person from the complainant side was grazing his cattle while all the appellants were there is unbelievable. Similarly at the time of first incident no one from the complainant party was there but when the deceased reached the spot they were accompanied by their relations and no independent person witnessed the occurrence.
11-A. The learned counsel for the State has supported the conviction of all the four appellants by maintaining that even if the evidence of Shaukat Ali P. W. Is not believed, there are three eye- witnesses who have all deposed as to the details of the occurrence. Muhammad Tufail P. W. Was injured by Muhammad Jahangir appellant, so his presence cannot be denied, as such on the evidence of this witness alone the conviction can be sustained. The medical evidence can be invoked so as to corroborate the ocular testimony. He has further submitted that the intention can be formed at the spur of the moment, in this case all the four appellants had formed an intention to kill both the deceased.
12. In view of certain facts appearing in the evidence of the P: Ws. This case requires an analysis of the evidence as to the presence of the witnesses at the spot at the time of the occurrence. Shaukat Ali (P. W. 10) gave an account of the occurrence in full detail. He stated that after Jahangir appellant had given a soti blow causing an injury on the left band of Muhammad Tufail P. W. He ran towards the tubewell whereat he narrated the incident to his father Imam Ali (deceased) and Sakhi Muhammad deceased after which Imam Ali and Sakhi Muhammad went to "the cotton field and he followed them. In his cross-examination when he was confronted with his statement under section 161, Cr. P. C. He stated that he did not state before the police that he learned afterwards that the appellants had injured his father and Sakhi Muhammad and that he had not returned afterwards, wherein it was so recorded. According to an observation of the Supreme Court made in the case of Nazar Hussain v. Muhammad Shafi and others (PLD1965SC188) that when a witness is contradicted with his statement recorded by the. Police the only effect that it can have is to reduce the evidentiary value of his testimony in Court and make the witness unreliable on the point on which he is so contradicted, so applying the same it can be positively said that after Shaukat Ali P.
W. Had informed Imam Ali and Sakhi Muhammad deceased he did not follow them when the latters set out towards the cotton field where the occurrence took place, so Shaukat Ali P. W.
Cannot be taken as having witnessed the part of the occurrence which related to the causing of injuries to both the deceased by the appellants.
13. Khushi Muhammad P. W. 8 is real brother of Sakhi Muhammad deceased and Muhammad Hanif P. W. 9 is real brother of Imam Ali deceased. These two witnesses admittedly were not at the tubewell where the alleged information as to the receiving of injuries by Muhammad Tufail P. W. At the hands of Muhammad Jahangir appellant was given by Shaukat Ali P. W. They were further at some distance from the tubewell in their land. The distance between the place of occurrence and the tubewell as stated by Khushi Muhammad P. W. In his cross-examination was 8/9 acres Khushi Muhammad P. W. Had further stated that when the information was cost to both the deceased it was so loudly done that they could from such a. Distance bear Shaukat Ali P. W. Narrating the incident of letting loose the cattle and pertaining to Muhammad Tufail P. W. Upon which information they followed with a distance of one acre and intervening. However in the F. I. R. With which he was confronted he had stated that fie Muhammad Hanif and Shah Muhammad reached the place of occur--rence after hearing the roula. Muhammad Hanif P. W. Also stated in his evidence that he alongwith others followed the deceased and witnessed the occurrence. However, he was confronted with his statement before the police wherein it was not so recorded. In view of these confrontations it cannot be positively said that these witnesses witnessed the occurrence.
Had they been otherwise there at the place of occurrence as stated by them, then the appellants could not have taken to such a free hand as it was stated. As a matter of course they would have intervened one way or the other and not preferred the role of passive spectators.
14. Now the case of the prosecution as to the ocular account simply rests with the evidence of Muhammad Tufail P. W. Who is 20 years old and the son of Sakhi Muhammad Deceased. He had received injuries at the hands of Muhammad Jijhangir appellant, so hi: presence cannot be denied.
His nearness to one of the deceased will ordinarily put one to receive his account of the evidence with great caution so as to sift out the true facts from the embellishments. Tine other eye- witnesses generally toe the same tine as happens to be set out in an F. I. R.
The account given by Muhammad Tufail P. W. Cannot be received as such verbatim true for the simple reasons that the event put as to its detail does not appear to be plausible. If Sakhi Muhammad deceased after having taken a stick from Muhammad Tufail P. W. Had started rounding up the cattle of the appellants and if as stated by Muhammad Tufail P. W. That all the above-mentioned persons then advanced towards him (Sakhi Muhammad deceased) and on the statement of Sakhi Muhammad deceased that he would be taking their cattle to the cattle pond, the appellants abused him, then instead of giving him sota blows at that time there and then why Imam Ali deceased was selected first by-Sooba and Muhammad Jahangir appellant for sota blows when Imam Ali deceased was not shown either rounding up the cattle or intervening in any other way and if it is taken that all the four appellants after two out of them had given blows to Imam Ali deceased advanced towards Sakhi Muhammad deceased with Muhammad Jahangir as ahead of them, it is curious enough that how Sakhi Muhammad deceased could cause seven injuries out of which one had been described as grievous, to Muhammad Jahangir appellant when all the four appellants had advanced towards him. Muhammad Jahangir himself was armed with a sota. He could very well himself resist the sota blows by crossing his own sora and yet it can never be taken that all the other three appellants or Dona and Kala appellants waited first Sakhi Muhammad to complete his action of giving blows and then they gave their respective blows as mentioned in the evidence of Muhammad Tufail. Had all the four appellants advanced at a time Muhammad Jahangir appellant would have in no circumstances received seven injuries.
15. On the other hand the case put by one of the appellants namely Muhammad Jahangir as mentioned in his statement under section 342, Cr. P. C. Is that the incident started when only one of the animals belonging to Muhammad Jahangir had strayed into the cotton field of Sakhi Muhammad deceased on which after exchange of abusive language Muhammad Tufail P. W. Was pushed aside. After having received injuries at the hands of Sakhi Muhammad anal Imam Ali deceased he defended himself against them when he was under the attack. The defence as adopted also does not sound as plausible for the reason that regarding the first part Muhammad Jahangir appellant had minimized his role towards Muhammad Tufail P. W. Who stood at least corroborated by the medical evidence to the extent that he received injuries with a blunt weapon on his fingers. As to the act which was committed by Muhammad Jahangir after he had received the injuries at the hands of Sakhi Muhammad and Imam Ali the same is not mentioned vividly, The statement stops with the expression that he defended himself against them when he was under attack. If it is construed that Muhammad Jahangir appellant then caused blows to both the deceased in his defence, the situation so indicated appears as not plusible on the face of it because he being single handed could not have been able to inflict two injuries to each of the two deceased on the right and left sides of the head from whom he had already received seven injuries.
16. Both the sides have not come out meticulously with the correct Facts, therefore, even if the prosecution case is put in juxta-position with that of the defence one is left with no alternative but to recon--struct the actual happening with the help of the facts on the record.
17. From among the appellants Muhammad Jahangir appellant admitted his presence at the place of occurrence and he has also admitted the presence of Muhammad Tufail P. W. And as to the skir- -mish which took place between him and Muhammad Tufail, in his statement under section 342, Cr. P. C. From the facts of the case it is positive that the occurrence did take place within the cotton field of Sakhi Muhammad deceased and due to either straying of animals into the cotton field or having been deliberately let loose. a skirmish took place which ultimately led to the main occurrence. It cannot be said that Muhammad Tufail P. W. Will go to the extent of substitut--ing the appellants for the real participants in the absence of any motive or enmity.
It appears that after Muhammad Tufail P. W. Received an injury Shaukat Ali P. W. Reported the matter to Sakhi Muhammad deceased who taking alongwith him Imam Ali deceased being his servant came to the field and their Sakhi Muhammad deceased reprimanded Muhammad Jahangir for causing an injury to Muhammad Tufail and for grazing the cattle in the cotton field and damaging the crop upon which a quarrel ensued between both of them in which Sakhi Muhammad deceas--ed caused injuries to Muhammad Jahangir aided with Imam Ali deceased, thereupon the other three appellants who were present there attacked both the deceasd alongwith Muhammad Jahangir. Kala and Dona appellants inflicted sota blows one each on the head of Sakhi Muhammad deceased. Muhammad Jahangir and Sooba appellants caused injuries with their dangs on the head of Imam Ali deceased. It is relevant to note that the learned Additional Sessions Judge has rightly observed that Dona appellant was not blind at the time of commission of the crime. On the other hand if in this sequence the fight is treated to have taken place after Muhammad Jahangir appellant had received injuries then whether the part played by Muhamnad Jahangir and the other appellants can be treated as in self-defence or in defence of Muhammad Janangir respectively, the answer is `no' firstly because the appellants were the trespassers and their cattle had damaged the crop of deceased Sakhi Muhammad against whom alongwith Imam Ali he. Had the right to defend his property. Everything appears to have taken place without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel. None of the appellants can be said to have taken an undue advantage or acted in a cruel or unusual manner since each appellant had given only one blow and not repeated.
The grounds set up by the appellants in their memorandum of appeal are altogether fantastic not having any relation with the facts of the case nor such a case was raised by the appellants at the trial. The appreciation of the evidence as conducted by the learned trial Court is not justified because of certain improbabilities within the case itself. It has otherwise rightly disbelieved the recoveries being not stained with blood:
18. As a result of the above discussion' the occurrence took place without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel, therefore, the case stands as covered by Exception 4 to section 30n, P. P. C. As such their conviction and sentences under section 302/34, P. P. C. On two counts are set aside and they are found guilty under section 304-II, P. P. C. Because they can be fixed with the knowledge that blows on the head with sotas were likely to cause the death of the deceased though they were not animated with an intention to cause death or to cause such bodily injury as was likely to cause death. Accordingly, appellants Muhammad Jahangir, Sooba and Kala, are sentenced to ten years' R. I. Each with a fine of Its. 5,000 or in default thereof to undergo further six months' R. I. Each. Jahangir's conviction and sentence under section 323, P. P. C. Is upheld. The sentences awarded to Muhammad Jahangir appellant shall run concurrently. Dona appellant was bailed out by this Court during the pendency of his appeal under the report of the Medical Superintendent D. H. Q. Hospital, Sahiwal that he was about 65/70 year of age and suffering from absolute Glocoma and was a blind person the misfortune has already visited him, therefore, on compassionate ground he is sentenced to five years' S.-I. He is already on bail, he will be taken into custody to serve the remaining period of his sentence. All the four appeals are, therefore, partly accepted. The result of these appeals may be conveyed to the appellants in the jail.