' Gulbaz Khan, J.--Allah Bakhsh, Allah Ditta appellants and their father Ziadat appellants were tried by the learned Additional Sessions Judge, Multan, for offences under section 302/34, P.P.C. For committing the murder of Ismail, under section 325/34. P.P.C. For voluntarily causing grievous hurt to Subey Khan P.W. And under section 307/35, P.P.C. For making murderous assault on Subey Khan and Yousaf P.Ws. Allah Bakhsh appellant was sentenced to death under section 302/34, P.P.C. And a fine of Rs, 5,000 or in default in payment of fine to undergo rigorous imprisonment for one year.
He was further sentenced to undergo rigorous imprisonment for one year under section 307/34, P.P.C. He was also sentenced to undergo rigorous imprisonment for six. Months under section 325/34, P.P.C. Allah Ditta and Ziadat appellants were awarded sentence of imprisonment for life and a fine of Rs, 1,000 each or in default in payment of fine to undergo rigorous imprisonment for six months. They were awarded the same sentences under sections 307/34 and 325/34, P.P.C. As awarded to Allah Bakhsh appellant. All the sentences were ordered to run concurrently. The fine, if recovered, was ordered to be paid to the legal heirs of the deceased.
2. The appeal filed by Allah Bakhsh and others and the Murder Reference are being disposed of together.
3. On 4th October, 1977, at about morning time, Subey Khan complainant went to his fields. He found that the three appellants had demolished his banna (boundary of his fields) and encroached upon some of his land. The three appellants were ploughing their fields nearthat banna. Subey Khan complainant lodged protest with them and it led to exchange of abuses. In the meantime Ismail deceased, his brother Muhammad Yousuf (both students), and their brother Muhammad Yaqub (not produced), who were going towards school, reached the spot, on hearing the noise. They stopped Ziadat appellant from hurling abuses, whereupon Ziadat appellant asked his sons Allah Bakhsh and Allah Ditta to commit their murder. Allah Bakhsh and Ziadat appellants were armed with sticks while Allah Ditta appellant with a hatchet. Allah Bakhsh appellant inflicted three stick blows to Subey Khan complainant in quick succession, as a result thereof, right arm of the complainant was fractured. Allah Ditta inflicted hatchet blow to the complainant on the left leg.
Ismail deceased stepped forward to rescue his brother, but was assaulted by Allah Ditta and Allah Bakhsh appellants. The blow of Allah Bakhsh landed on the had of the deceased, who fell down unconscious. Ziadat appellant caused two injuries to Muhammad Yousaf P.W. On the head and right arm. Ghulam Farid (P.W.8) and Imam Bakhsh (not produced) were attracted to the spot, who witnessed the occurrence and rescued the complainant party. Muhammad Yaqub took his father and brothers to Civil Hospital, Kabirwala. The doctor examined the injuries of Ismail, Yousaf and Subey Khan. Since Ismail was unconscious, he was referred to Nishtar Hospital, Multan. The deceased expired, on 9th October, 1977 at 10-15 a.m. In Nishtar Hospital, Multan.
4. Subey Khan complainant made statement on 4th October, 1977, before Ghazanfar Hussain Shah, Sub-Inspector (P.W.11). 1he statement was completed by 8.45 a.m. And it was sent to the Police Statior for the registration of case and the formal F.I.R. Was recorded at 8-50 a.m. The same day.
5. Mushtaq Ahmad, A.S.I., Police Station Multan Cantt. Received information on 9th October, 1977, about the death of Ismail. He reached Nishtar Hospital, Multan and prepared injury statement and inquest report and sent the dead body for post-mortem examination. The recoveries ot sticks at the instance of Allah Bakhsh and Ziadat appellants and hatchet at the instance of Allah Ditta appellant were not relevant as those were not stained with blood. The appellants were challaned after investigation
6. Dr. Syed Zia-ud-Din Zaidi medically examined Muhammad lcmail age fourteen years on 4th October, 1977 at 7-50 a.m. And found the following injuries on his person:-
(1) Contused wound on right side of the head 3/4" x 1/4" x scalp deep with a depressed area around it in the area of 2f" x 2-3/4" at a distance of 4" from the right ear.
(2) An incised wound on radial side of right forearm 1" x f" x f" obliquely at the centre.
' Muhammad Ismail was unconscious and restless. His blood pressure was 90/65. Pulse was weak and rapid. He was vomiting pure blood. He was referred to Nishtar Hospital, Mu!Tan. Injury No,1 was caused with blunt weapon while No,2 with sharp-edged weapon. The duration of the injuries was within one hour.
' The same doctor medically examined Subey Khan complainant, aged sixty-five years, the same day, at 7.50 a.m. And found two contused wounds, an incised wound and a contusion mark. Injury No,2, which was a contused wound on the medial side of right forearm was declared grievous in nature. Injury No,1 was kept under observation. X-Ray of the head and right forearm was advised.
Fracture of ulna bone was found but nobody injury was detected in the skull. Injury No,1, which was kept under observation, was found simple. The duration of the injuries was one hour.
' On the same day, at about 8-00 a.m., the same doctor examined Yousaf, aged seventeen years, and found two contused wounds and a contusion mark on his body. Injuries Nos. 1 and 2 were kept under observation. Injury No,3 was declared simple. All the injuries were caused with blunt weapon with the duration of one hour. On X-Ray, nobody injury was seen.
7. Dr. Muhammad Saeed Arif, who conducted the post-mortem examination of Muhammad Ismail, had left for Saudi Arabia and was not available for evidence. The post-mortem report was proved to be in the handwriting of Dr. Muhammad Saeed Arif through the statement of Khadim Hussain Dispenser. In the opinion of the Doctor, Muhammad Ismail had died on account of injury No,1 caused with blunt weapon, which was dangerous to life and sufficient to cause death in the ordinary course of nature.
8. Subey Khan (P.W.7), Ghulam Farid (P.W.8) and Muhammad Yousaf (P.W.10) fully supported the prosecution case. Muhammad Yaqub and Imam Bakhsh P.Ws. Were given up as unnecessary.
Subey Khan and Muhammad Yaqub were the injured witnesses.
9. The case of Allah Ditta and Ziadat was that of denial. They denied their presence at the spot and attributed their involvement on account of relationship with Allah Bakhsh appellant. The appellants admitted their relationship with Subey Khan complainant. The case of Allah Bakhsh appellant in his statement under section 3142, Cr. P.C. Recorded by the trial Court was that one buffalo and two bullocks of Subey Khan P.W. Damaged his crop in Killa No,
25. He alongwith his mother wanted to take away the cattle to the cattle pound; that Subey Khan complainant, Muhammad Ismail deceased and Yousaf attacked him and his mother and tried to snatch the cattle, but this attempt was resisted by him and his mother, upon which, they called his mother as a bitch and used more force and he in a fit of rage and under sudden and grave provocation and in the exercise of right of self-defence, injured them with Dhanga. He, however, did not admit the presence of his father and brother. He also did not admit the presence of Ghulam Farid. Yaqub and Imam Bakhsh P.Ws. He produced Rab Nawaz, A.S.I. (D.W.1) in his defence. The defence witness stated that the history-sheet of Subey Khan P.W. Was opened in 1961 and the history-sheet was still in existence. He further stated that Subey Khan was challaned in different cases in the years 1950, 1952, 1967, 1968 and 1969. The history-sheet Exh. D.W.1/A was placed on the record.
10. The learned counsel for the appellants contended that the prosecution had set up two motives in the F.I.R. But the second motive regarding the dispute over marriages was discarded while with regard to the first motive, only complainant was examined and thus the prosecution failed to prove motive in this case; that Subey Khan and Muhammad Yousaf P.Ws. Were father and brother of the deceased respectively and hence interested against the appellants; that Ghulam Farid was not a disinterested witness as he admitted in cross-examination that he had relations with Subey Khan prior to the Independence; that Imam Bakhsh was a disinterested witness, but he was not examined by the prosecution; that there was no independent corroboration -of statements of the interested witnesses; that evidence had not come forth from unimpeachable source; that Allah Bakhsh appellant had caused injuries to the deceased and the prosecution witnesses under grave and sudden provocation and had acted in the exercise of the right of defence of his person and property both and thus had committed no offence.
11. The learned counsel for the State submitted that the judgment of the trial Court should be upheld.
12. It was an admitted fact that both the parties were closely related to each other. The dispute had taken place over a banna and encroachment by the appellants over the land of the complainant.
The occurrence had taken place at about morning time in Chah Saryan Wali, Dakhli Village Jaudhpur. The spot of occurrence was seven miles from Police Station Kabirwala. The deceased and the two injured witnesses were taken to Civil Hosptial, Kabirwala at 7-50 a.m. The sunrise time on the day of occurrence was 7-57 a.m. The statement of Subey Khan was completed at 8-45 a.m.
There was no time for deliberation and concoction of a false version. The deceased had an incised wound, which was caused with sharp-edged weapon. His second injury was the result of a blunt weapon. One of the four injuries of Subey Khan complainant had been caused with sharp-edged weapon. In all, the deceased and the two injured witnesses had nine injuries. The medical evidence proved that sharp-edged as well as blunt weapons had been used in causing injuries to the deceased and two injured witnesses. The occurrence had taken place practically near the boundary of fields of the complainant and the appellants. On account of injuries on the person of Subey Khan and Yousaf, their presence could not be denied. Allah Bakhsh appellant had admitted their presence at the spot. Subey Khan complainant admitted that in year 1967, Ziadat appellant got a case registered against him under section 411, P.P.C. At Police Station Sarai Sidhu but it was an old affair and no untoward incident took place between them from 1967 to 1977. On account of close relationship, the complainant and his son Muhammad Yousaf could not involve the appellants falsely in the case. Ziadat P.W. Was married to the sister of Subey Khan complainant.
Allah Bakhsh and Allah Ditta were sister's son of complainant. The statements of Subey Khan and Muhammad Yousaf were corroborated by disinterested evidence furnished by Ghulam Farid (P.W.8). The last mentioned witness was neither related to the complainant nor hostile towards the appellants. He was a natural witness. His land was situated close to the place of occurrence. He was ploughing his land and on hearing the noise, reached the spot and witnessed the occurrence.
He admitted in cross-examination that prior to independence, his name was entered in the register of bad characters, but there was no such entry in the police record after Independence. His statement could not be brushed aside simply for the reason that thirty years ago, hats name was entered in the register of bad characters. His statement was free from inherent defects and infirmities. He was- cross-examined at length but nothing favourable to appellants could be elicited. In the first place, the statement of Subey Khan and Muhammad Yousaf did not require any corroboration and in the second place, if at all, such corroboration was required it could be found from the statement furnished by Ghulam Farid P.W. Statement of the eye-witnesses were further corroborated by the medical evidence.
13. Now coming to the defence plea of Allah Bakhsh appellant, we are constrained to observe that he did not receive even a single scratch on his body. According to his own version, there were three persons from the complainant side against him and his mother. He did not produce his mother in defence. In case, Subey Khan, Yousaf P.Ws. And Ismail had attacked Allah Bakhsh appellant, they would have caused him injuries. Yousaf P.W. And Ismail were school-going boys and it was the time for going to the school. Their brother Muhammad Yaqub, who was a school teacher, was also accompanying them. In these circumstances, we cannot agree with the version given by Allah Bakhsh appellant and we reject his plea as being false.
14. It was the case of. The prosecution that there was no premeditation. The occurrence had taken place on the spur of moment. There was no bad blood between the parties. At the most, Allah Ditta and Ziadat appellants shared the common intention with Allah Bakhsh appellant of causing grievous hurts. The fatal injury was attributed to Allah Bakhsh appellant. This injury was sufficient to cause death in the ordinary course of nature. His conviction under section 302, P.P.C. Is upheld that his death sentence is reduced to sentence of imprisonment for life. His sentence of fine is maintained and in default in payment of fine, he shall undergo imprisonment as ordered by the trial Court. The conviction and sentence of Allah Bakhsh appellant under section 307/34, P.P.C. Is set aside but his sentence under section 325/34, P.P.C. Is maintained. His substantive sentences shall run concurrently.
' The convictions and sentences of Allah Dita and Ziadat appellants under sections 302/34 and 307/34, P.P.C. Are set aside. The convictions and sentence under section 325/34, P.P.C. Are maintained. The appellants shall be entitled to the benefits of section 382-B, Cr. P.C. And the period spent by them as under-trial prisoners shall be counted towards the period of sentence. With this modification, the appeal is dismissed.
' The sentence of death of Allah Bakhsh is not confirmed. . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.