This is an appeal by Muhammad Ashraf (40) son of Ahmad, nor Muhammad (40) and Ramzan
(30) sons of Sultan, caste rain, residents of Sahiwal, District Sargodha. They have been convicted by Ch. Muhammad Ishaq, Magistrate 1st Class with section 30 powers, Sargodha, under section 307 read with section 34 of the Pakistan Penal Code. Ramzan is sentenced seven years' rigorous imprisonment and Muhammad Ashraf and Noor Muhammad to six years rigorous imprisonment each and in addition all of them have been fined Rs. 200.00 each, in default of the payment of which, they have been directed to undergo further rigorous imprisonment for a period of nine months. They have further been convicted under section 342 read with section 34 of the Pakistan Penal Code and sentenced to one year---s rigorous imprisonment each. The sentences have been ordered to run concurrently. Rs. 200.00 out of the fine, if realized, has been directed to be paid to Imam Din P. W. As compensation. The convicts have come up in appeal.
The prosecution case briefly is, that on the 19th of January 1965, at about digerwela, Imam Din (P.
W. 2) arrived at Chah Bajewala, situated in the area of village Sahiwal, at about d11gerwala to fetch fodder for his cattle. He had hardly begun cutting fodder from the field of one Ashiq Ali, when the three appellants, out of whom, Ramzan was armed with a hatchet and the other to carried sticks arrived there and gave him injuries with their respective weapons.
3. After belabouring Imam Din P. W., the appellants carried him away to Chah Duratta,-situated at a distance of a few killas from the place of occurrence and locked him up in their cattle---shed.
4. The motive for the alleged assault upon the person of Imam Din P. W. Is stated to be, that he was suspected of carrying on with the wife of Ramzan appellant.
5. Report of the occurrence was lodged at Police Station Sahiwal in Sargodha District at 5 p.m., on 19th January 1965, the police station being five furlongs from the place of occurrence by Ghulam Abbas (P. W. 1).
6. After recording the first information report, Sub-Inspector Rashid-ud-Din (P. W. 8) visited the spot. He broke open the lock of the cattle-shed of the appellants and brought out Imam Din P. W.
The police officer recovered blood-stained earth from the cattle-shed and also from the alleged place of assault on Imam Din P. W. He arrested Muhammad Ashraf and Noor Muhammad appellants, who led to the recovery of their respective sticks. On the following day, Ramzan appellant was arrested and he got recovered hatchet P.
1. From his cattle-shed, from where Imam Din P. W. Had been recovered earlier.
7. Dr. Muhammad Saeed Chaudhry (P. W. 5) examined Imam Din on 19th January 1965, and found ten injuries on his person. Injuries Nos. 8 and 10, which were, bruise 4" x 4" over the front and middle of left leg with swelling, and incised wound measuring 2--" x -- over the left parietal region respectively were kept under observation and their X-ray was advised. The rest of the injuries had been caused by blunt weapons and were simple. Injury No. 10 alone had been caused with a sharp-edged weapon.
8. When taken to the hospital Imam Din P. W. Was in unconscious condition. His pulse was running at 'the rate of 96 per minute, temperature was 97.6 and blood pressure 130/65. His skirt was cold and clammy. He was brought in senses after prolonged efforts. Injuries Nos. 8 and 10 were subsequently X-rayed by Dr. A. H. Malik (P. W. 7). Their results are on the file and reveal, that no body injury on the left tibia and fibula and the skull were noticed. Thus all the injuries on the person of Imam Din P. W. Are simple.
9. The occurrence is alleged to have been seen by Ghulam Abbas (P. W. 1), Ghafoor (P. W. 3) and Wali Muhammad (P. W. 6). I shall deal with their statements presently.
The contention of the appellants is, that Imam Din P. W., who was carrying on with Mst. Umrai, the wife of Ramzan, trespassed into the house of the latter in order to meet his wife gild when apprehended he attacked Ramzan, who, in his defence, inflicted a stick blow on him. He thereafter apprehended him and produced him before the police,' but the police instead of recording his statement challaned him and his co-accused at the instance of Ali Sher, Member Town Committee, Sahiwal, as Imam Din P. W. Was his servant.
10. There is no denying the fact, that according to the prosecution version Imam Din P. W. Was found lying injured in the cattle-shed of Ramzan appellant by the police officer when he arrived at Chak Duratta. The question, however, should be, as to under what circumstances, had Imam Din gone to or was taken to the cattle-shed of Ramzan. This question has to be dealt with in the light of the fact, that admittedly Imam Din was carrying on with the wife of Ramzan. His own version with regard to this matter is :- "The motive for the offence was that accused, Ramzan, suspected me of having illicit connection with his wife. She did not use to live with Ramzan accused because of this."
When his statement was recorded by the police, which is Exh. D. A. He stated that he was suspected of having illicit connections with Mst. Umrai. He also stated in the aforesaid statement, although he did not abide by it and was duly confronted" with it, that Mst. Umrai had been visiting him previously many times due to their illicit connections and she did not live with her husband.
11. Although the police officer has stated, that he recovered some blood-stained earth from the scene of occurrence, which was in bersim field, I am not inclined to believe it. If the prosecution case had been that Imam Din was beaten at Chah Bajewala, when nobody was present there, I would have readily believed, that after having been rendered `unconscious, he was carried by the three appellants to the cattle-shed of Ramzan and confined there. However, there were at least three other persons present and when, one of the accused was holding the arms of Imam Din and the other was holding him from the legs, and they took him to the cattle-shed, there is 'no reason, why the so-called eye-witnesses could not have interfered and rescued him, especially when Ramzan who was supposed to be armed with a hatchet was, according to Ghulam Abbas, holding Imam. Din from the legs. He would not have been in a position, in the aforesaid circumstances, to wield his hatchet and, therefore, there was nothing which stood in their way to rescue him.
12. Furthermore the presence of the witnesses at the place of occurrence appears to be doubtful, because Ghulam Abbas (P. W. 1) had nothing to do with Chah Bajewala. His statement, that he went to fetch vegetables from the tenant of Ashiq Ali, who he treats as his relative, as they belong to the "same native place", appears to be false. This Ashiq Ali is the nephew of Ali Sher, Member Town Committee, Sahiwal, who according to the appellants, is responsible for their false implication. Imam Din, the injured person, himself could not give any plausible reason as to why he had gone to Chah Bajewala. His statement reveals, that, in all probability, he had never gone there nor was he beaten there. The following passage from his statement may be usefully reproduced "I had been to Chah Bajewala to fetch fodder for the cattle of Ashiq Ali on the day of occurrence. I had not stated before the police that I had been to Chah Bajewala to fetch fodder for my lamb.
(Confronted with Exh. D. A. Wherein it is so recorded.)"
Ghafoor (P. W. 3) claims, that he was on his way to Chah Aliwala, which is a square away from the spot, when he saw the occurrence. When questioned, whether he had litigation with Muhammad Yar and Shera Arain, the relatives of the appellants, he stated, that he had litigation with them, but he did not know, whether the aforesaid persons were related to any of the accused. In examination-in-chief he had deposed, that he had seen the three appellants inflicting injuries on the person of Imam Din P. W. However, in cross-examination he deposed "The injuries had actually been inflicted on Imam Din before my arrival. The accused were, however, present there along with about a score or more other persons out of whom I cannot name anybody."
13. The- last eye-witness is Wali Muhammad. He has altogether a different story to tell. He deposed, that he had gone to bring fodder from Chah Duratta. At digerwela when he was returning from there, he saw Ashraf and Noor Muhammad appellants assaulting Imam Din P. W. Ashraf was armed with a stick while Noor Muhammad was, empty handed. Although he deposed that the accused (appellants) carried Imam Din to their kotha after belabouring him he added, that the police got recovered Imam Din from the cattle-shed, which was not locked nor was it chained. He also said, that when asked, the accused told him, that they had beaten Imam Din P. W. As he had developed illicit connections with Mst. Umrai, wife of Ramzan.
14. Such being the state of evidence, I am inclined to hold, that Imam Din P. W. Trespassed into the house of Ramzan with a view to meet his wife, Mst. Umrai. It is there, that he was beaten and confined in the cattle-shed.
The question thus requiring consideration is, as to whether the appellants intended to cause the death of Imam 'Din P. W. The very fact, that though one of them was armed with a hatchet, he did not use it more than once and even then caused a simple injury though on the head. If the intention had been to kill Imam Din P. W., as Ramzan had also grudge against him, he would have finished him, especially when the so-called eye-witnesses even if, present, did not interfere. Thus considering this aspect of the case, I alter the conviction of the appellants from section 307 read with section 34 to one under section 324 read with section 34 of the Pakistan Penal Code. Their conviction under section 342 read with section 34, P. P. C. Is, however, maintained. In view of the provocation, which imam Din P. W. Had given to the appellants by carrying on illicit relations with the wife of Ramzan I reduce their sentence to the period already undergone by them under section 324 read with section 34 of the Pakistan Penal Code. The sentence of fine imposed upon them, is set aside. The fine, if paid, shall be refunded to them. Their sentence, under section 342 read with section-34, which has already expired, is maintained.
16. The result is, that the appeal is partly allowed and the appellants shall be set at liberty forthwith, provided they are not required to be detained in any other case.