MUHAMMAD MUNIR FARUQEE, J.-Muhammad Khan (appellant) was convicted under section 302, P.
P. C. And sentenced to death by the Additional Sessions Judge, Gujrat, on the 18th of December 1968, for having committed the murder of Muhammad Bashir, his co-villager, on the 29th of May 1967, at chhawela in the revenue estate of Mauza Ghansia in Police Station Jalalpur Jattan. District Gujrat. He has filed the present appeal to question the correctness of his conviction while the usual reference under section 374, Cr. P. C. Is also before us and both these matters are being disposed of by this judgment.
2. The prosecution case, in brief, is that Muhammad Khan (appellant) was the Mauroosi owner of the land which was being jointly cultivated by Muhammad Hussain P. W. And his son Muhammad Bashir deceased as tenants-at-will under the .Appellant. It was alleged that on the fateful day at about chhawela they found Muhammad Khan (appellant) ploughing this land and Muhammad Bashir (deceased) going inside the field objected to it. Muhammad Khan (appellant) abused him telling him that he being the owner of land could occupy, it 'any the he liked. Muhammad Bashir (deceased) in return abused Muhammad Khan (appellant) and going ahead stopped the bullocks yoked in his plough. On this Muhammad Khan (appellant) is said to have pulled out Jangi P. 2 from the plough and planted a blow on the head of Muhammad Bashir (deceased) which felled him to the ground but this did not satisfy the appellant and after his fall delivering to more blows, one on the back of his head and the other on his left shoulder blade, disappeared from the scene along with the Jangi P.
2. Muhammad Hussain P. W., the father of the deceased, out of fear, could not interview and witnessed the occurrence standing at a safer distance from them along with Muhammad Sharif and Muhammad-Azim P. Ws., who happened to pass by that field at that the.
After the depar--ture of Muhammad Khan (appellant) Muhammad Hussain P. W . Went to the spot and found Muhammad Bashir (deceased) lying unconscious and putting him on a cot carried him to the Civil Hospital, Gujrat, where Dr. Ghulam Sarwar P. W 12 examined him at 12-10 p.m. On the same day and found the following injuries on his person vide Exh. P. J :-
1. A contused wound `L' shaped 2" x 1--" x --' x skull deep (fissure fractures visible in the depth of the wound). Bleeding was present from the left ear and the left nostril. Wound was situated on the left side of the head 3--" from the left, ear.
2. A contused wound 1-- " x --" x scalp deep on the back of the head.
3. A contusion red 5" x 1--" and 3--" x 1--" with a lacerated wound 1" x 1/3" x -- on the left back of the chest and scapular region.
Injury No. 1 was grievous and injuries Nos. 2 and 3 were kept under observation which were caused with blunt weapon within 12 hours duration. After his medico-legal examination the doctor sent a ruqqa to the local police informing him about' the arrival of Muhammad Bashir (deceased) in an injured condition, On the receipt of the ruqqa, Ghulam Muhammad, then investigating Head Constable, Police Station Saddar, Gujrat, went to the hospital and inquired from the doctor vide.
Exh. P. K. If Muhammad 'Bashir was in a fit condition to make a statement. The doctor, vide Exh. P. K/1 reported that the patient was not in a fit condition to make a statement at that the. The Head Constable, therefore, recorded the statement of Muhammad Hussain P. W. Exh. P. D. About this occurrence at 3-30 p.m. On the same day and forwarded the same to the concerned Police Station, Jalalpur Jattan where Muhammad Fazal H. C. P. W. 5, drew out the formal F. I. R. Exh. P. D/1 on the basis of his statement Exh. P. D. At 4-30 p.m. On the same day and registered this case against the appellant under section 325, P. P. C. Saeedullah Khan S. I. P. W. 15 investigated this case on reaching the spot on the same day, where Muhammad Hussain P. W., the father of the deceased, produced the last wearing apparels of the deceased chadar P. 3, khes P. 4 and shirt P. 5 (all blood-stained? Which were taken into possession vide memo. Exh. P- F.
3. On the following day, i.e. 30th of May 1967, he collected blood-stained earth from the spot which was sealed into a parcel vide memo. Exh. P. A. He also took into possession from there plough P. 1 (without Jangi) vide memo. Exh. F. $. He received intimation from the Civil Hospital, Gujrat, that the deceased had expired in the hospital on that very day so the offence was converted from section 325, P. P. C. To that under section 302, P. P. C. The S. I. Went to the hospital and after preparing the injury statement Exh. P. M. And inquest report Exh. P. N. Despatch--ed the dead body to the mortuary where Dr. Tariq Rashid Toosi performed the autopsy over it on the same day at 4-30 p.m.
Vide. Exhs: P. G. And P. G/1 and found the following injuries :-- Lacerated wound over left side of head situated 2--" above the top of left ear i.e. 3-- x --" bone deep.
2. Lacerated wound over occiput i.e.", 1--"x --" is bone deep.
3. Abrasion with lacerated wound over left supera scapular region, Measurest :--
(a) abrasion i.e. 3--" x 1--".
(b) wound 1" x 1/3" x --".
Scalp and skull were. Injured, temporal bone fractured and occipital bone fractured; brain and its membrances were injured, rest of the organs were intact and healthy, stomach was empty, small and large,, intestines contained faecal matter. Bladder contained to oz of urine.
4. The cause of death was due to ante-mortem injuries Nos. l and 2 caused by blunt weapon resulting in damage to brain and were collectively sufficient to cause death in the ordinary course of nature, the the between injuries and death being 24 to 30 hours and between death and post- mortem 6 to. 8 hours.
5. The S. I. Arrested the appellant on the same day who led him to his residential house and produced the blood-stained JangiP. 2 (the handle of the plough) which was taken into possession and sealed into a parcel vide memo. Exh. P. C., Exh. P O. Being the sketch of the place of the, recovery of the Jangi P.
2. Chadar P: 6 of the deceased was brought back from the mortuary by Muhammad Hussain F. C. Which was taken into possession and sealed into a parcel vide Memo.
Exh. P. H. All the sealed parcels were deposited by the S. I. With Muhammad Fazil, Muharrir Head Constable Police Station, Jalalpur Jattan on the 31st of July 1967, in the Malkhana for safe custody.
The Sub-Inspector got prepared the site plans Exh. P. Q. And its duplicate P. Q/1 through Muhammad Sharif Patwari and putting his note in the red ink on the same, signed it in token of its correctness. The to sealed parcels containing the earth and Danda P. 2 (Jangi) were sent through Muhammad Azam F. C. To the office of the Chemical Examiner, Lahore, on the 5th of June 1967, who found them stained with human blood vide the reports Exhs. P. R. And P. S. On the completion of the investigation the appellant was challaned under section 302, P. P. C. And after the necessary inquiry he was committed to the Court of Sessions for his trial resulting in his conviction as above.
6. At the close of the prosecution case before the aforesaid inquiry Magistrate the appellant pleaded not guilty to the charge denying all the above-detailed facts and stated that he had never given the land to Muhammad Hussain P. W. (father of the deceased) for cultivation and it was never in their possession. He, however, admitted that on the day of occurrence he was ploughing the field and Muhammad Bashir (deceased) trespassing there in objected to it resulting in exchange of abase between them and that he had caused injuries to the deceased in the exercise of the right of private defence of property When he had interfered with the ploughing of his own fields. At the trial, in the Sessions Court, he, however, went back on the statement urging that it was absolutely incorrect and false and was made under the fear and inducement of Police ) and changing his position he admitted that Muhammad Hussain P. W. Was his tenant on the land in dispute and that he used to cultivate it jointly with his son Muhammad Bashir (deceased) till to months before the occurrence adding that after Muhammad Hussain P. W. Had cut his wheat crop from this field he had replaced him by one Rehmat as his tenant .Who ploughed this field and it was in his possession at the the of the occurrence. He further denied to have caused any injury to the deceased with Jangi P. 2 And also denied, its recovery by the police at his instance in the presence of Masoom Shah and Lal Khan. P. Ws. Adding that the complainant party wanted to turn him out of the village and for this reason they had falsely implicated him in this case and that the P.
Ws., were related to the complainant but led no evidence in defence.
7. The prosecution has relied for its case on the testimony of Muhammad Sharif P. W. 12, Muhammad Azeem P. W. 13 and Muhammad Sharif P. W. 14 for the eye-witness account of the occurrence and Masoom Shah P. W. 10 a End Lal Khan P. W. 11 for the recovery of blood-stained Jangi P. 2 at the instance of the appellant. In addition to it we have the medical evidence which had left no room for doubt that Muhammad Bashir (deceased) had died of violence. The three eye-witnesses have supported the prosecution case, as narrated above and we need not recapitulate their evidence or scrutinise it as Muhammad Khan (appellant) had admitted the entire case of the prosecution in his to statements reproduced above. There being nothing on' record to support his contention that his statement before the inquiry Magistrate was the result of any threat or inducement given to him by the police, the appellant could tot wriggle out of the implications of the admissions made therein by him, as in the eyes of law it was as good a piece of evidence as any other tendered by the prosecution against him at the trial. In the absence of any evidence or circumstance impairing its veracity it has to be taken into consideration for the just decision of the case. The substance of these to statements is that the land in dispute was being cultivated by Muhammad Hussain P. W. Assisted by his son Muhammad Bashir (deceased) till to months prior to this occurrence and finding Muhammad Khan (appellant) ploughing it on the fateful day Muhammad Bashir (deceased) had taken exception to it resulting in exchange of abuse between them in the course of which the appellant had caused injuries to the deceased.
The entire occurrence with its background having thus been admitted by the appellant, except of course the use of Jangi P. 2 and its recovery at his instance from his house, we are left with the task of determining if on the eventful day the appellant was in lawful possession of the land and had any right to defend it when Muhammad Bashir (deceased) interfered in his ploughing it.
7-A. Cultivation of the land to months before the occurrence corresponded with Rabi crop of 1967 which is normally cleared by the 15th of May if the weather conditions do not delay it, so a -person in possession of land in Rabi is supposed to be in it, occupation by the end of May 1967. If Muhammad Hussain P. W. Had stated that after cutting the Rabi crop of wheat he continued in possession till the the of the occurrence he had not made an improbable assertion especially when there was nothing on record to show that he had relinquished or abandoned his tenancy over it of his own accord or was evicted in due course of law as provided in sections 36, 38 and 41 of the Tenancy Act. Faced with this situation even the learned counsel for the appellant, Malik Saeed Hassan, had not challenged the actual occurrence before us and had urged that after the complainant Muhammad Hussain P. W. Had reaped his harvest of Rabi 1967, Muhammad Khan (appellant) had, in the customary manner, verbally asked him to give up the 'possession of the land in dispute and that he (the complainant) had readily surrendered it in his favour but unfortunately this contention of the learned counsel does not find any support from the record of the case. In fact the appellant had nowhere taken this stand. It was not even suggested to Muhammad Hussain, P: W. In his lengthy cross-examination or to any other witness of the prosecution, appearing against him at the trial. He had not ventured to take this plea even in his considered statement under section 342, Cr. P. C. Where he had only stated that Muhammad Hussain P. W. Cut his wheat crop from his land and he (appellant) told one Rehmat to cultivate it in future as his tenant who was in possession thereof at the the of this occurrence. It was clearly an afterthought and is accordingly rejected outright. Learned counsel for the appellant tried to make much capital out of the relevant entries in the Khasra Girdawari (Copy Exh. P. E.) in respect of this land. He urged that in spite of the fact that Muhammad Hussain P. W. Was in occupation of this land since long he had not cultivated any crop over it in Rabi and Kharif 1966 as is borne out from Exh. P. E. Copy of the khasra Girdawari which also indicated that the Rabi crop for 1967 had been sowed by Muhammad Khan (appellant) on behalf of the Maroosian. This argument was untenable in the face of the above admission of the appellant that Muhammad Hussain P. W. And his son Muhammad Bashir (deceased) had cultivated the land in dispute till to months prior to the occurrence which corresponded with Rabi 1967 as observed above. The amended entry with respect to Rabi 1967 in the hand of Muhammad Hussain Girdawar was thus incorrect. Exh. ,P. E.
Rather indicated that Muhammad Hussain P. W. Had taken no interest in the land in dispute for full one year but ,had started cultivating it in Rabi 1967. He was thus holding over the tenancy after the expiry of one year so there was no occasion for him to surrender its possession so readily, in favour of Muhammad Khan (appellant) on a bare verbal request. We, therefore, conclude that Muhammad Hussain P. W. Was in continuous possession of the land in dispute at the the of this occurrence and Muhammad Khan (appellant) was a trespasser over it. Ass such he had no legal right to defend his illegal entry so no right of private defence of property was available to him. On the other hand, Muhammad Bashir (deceased) was certainly entitled to re-enter and re-instate himself on the land in dispute. He could even use the necessary force for that end or to evict him from this land. In the present case Muhammad Bashir (deceased) and his father Muhammad Hussain P. W. Had Mug by chance noticed Muhammad Khan (appellant) ploughing the land on that day and like a peaceful citizen the deceased went into the field and asked the appellant to desist from ploughing it. The fact that he was empty-handed and his father Muhammad Hussain P.
W. Had stayed back on the' Banna of the field indicated that they had no aggressive designs against him. Muhammad Khan (appellant) had, on the other hand abused Muhammad Bashir (deceased) when he took exception to his ploughing the field. The deceased might have abused the appellant in, return so there was no occasion for provocation as it was the result of his own misconduct. Moreover a self-sought provocation could afford no mitigation in his offence either.
The appellant had caused to injuries on the head of Muhammad Bashir (deceased) with Jangi P. 2 which were only collectively and not individually sufficient to cause death while the third injury on the scapular region was not of a serious nature. Although the appellant had not denied in clear terms, the use of Jangi P. 2 as the weapon of offence he, however, had not admitted its recovery at his instance from his house. But we have no reasons to disbelieve the three eye-witnesses who have attributed to him the use of Jangi P.
2. In un-equivacal terms. They are no doubt related to the deceased but we cannot discard their evidence merely on that score especially when they have no prior motive to falsely implicate him. The same is true of the to recovery witnesses Masoom Shah E., W. 10 and Lai Khan P. W.
11. Jangi P. 2 was found to be stained with human blood vide the reports of the Chemical Examiner and the Serologist Exhs. 'P. R. And P. S. So there could be no doubt about its use by the appellant in inflicting the injuries on the deceased but in the peculiar circumstances of this case it cannot be held that Muhammad Khan (appellant) had caused the injuries to the: deceased with the' intention of causing his death.
8. The land in dispute belongs to the appellant and he seems to have ploughed it in the bona fide belief that after his tenant-at-will had cut the crop he could occupy it and had apprehended no interference from him. The fact that the appellant had taken no formidable weapon with him when he went to plough this land on the fateful dray also pointed in the same direction. Muhammad Hussain P. W. And his son Muhammad Bashir (deceased) had their own land in that vicinity and seeing the appellant ploughing it Muhammad Bashir (deceased) had taken objection to it resulting in exchange of hot words and abuse between them in the coarse of which Muhammad Bashir (deceased) standing in front of the bullock stopped the ploughing. It was in the heat and Excitement of that moment and the consequent passion that Muhammad Khan (appellant) pulled out Jangi P. 2 from his plough and without any premeditation on his part inflicted these injuries on the person of the deceased which certainly negated any intention to kill, so he could not be held 'guilty of murder. We, therefore, cannot maintain the conviction of the appellant under section 302, P. P. C. He, however, can be safely saddled with the knowledge that the injuries inflicted by him were likely to cause the death of Muhammad Bashir (deceased).
9. As a result of this discussion we set aside the order passed by the learned trial Judge and holding him guilty for an offence under section 304 (i), P. P. C., convict him accordingly. We sentence him to rigorous imprisonment for seven years only with a fine of Rs. 2,500 which, if recovered, shall be paid to the dependents of Muhammad Bashir (deceased) as compensation for their loss. In case of default in payment of fine the appellant shall undergo further rigorous imprisonment for one year: 10: The appeal is dismissed with these modifications in the conviction and sentence of the appellant and the reference is answered accordingly.