' The convicts/appellants Fateh Khan aged 20 years son of Jahan Kban and his brother Sher Muhammad aged 30 years, resident of village Koradhi, Tehsil Khushab, District Sargodha (now district Khushab) were tried by the learned Additional Sessions Judge, Sargodha, alongwith three other co-accused namely Jahan Khan son of Muhammad, Muhammad Khan son of Jahan Khan and Muhammad Aslam son of Muhammad Khan under section 302/307/148 read with section 149, P. P. C. For the murder of Haji Ghulam Muhammad, their co-villager, and for infliction of injuries to Sher Muhammad (P. W. 6), the first informant, on 25th August, 1979 at 9-30 a, m. In the area of village Koradhi, Police Station, Noshera.
2. The learned trial Judge, vide his judgment dated 26th October, 1980 convicted both the appellants under section 302/34, P. P. C. And sentenced each of them to imprisonment for life and to a fine Rs, 5,000 or in default to 3 months R. I. It was directed that the fine, if recovered, should be paid to the heirs of the deceased. The co-accused was, however, acquitted.
3. The convicts/appellants have filed the present appeal against their conviction and sentence while Sher Muhammad complainant has also filed Criminal Revision No, 93 of 1981 seeking enhancement of the sentence of appellants. Both the matters viz., the Appeal and the Criminal Revision shall be disposed of by this judgment.
4. F. I. R. Account of the prosecution version is that on 23rd August, 1979 Fateh Khan appellant damaged the crops of Sher Muhammad (P. W. 6) who gave a slap on his (Fateh Khan's) face. Two days later i. e. On 25th January, 1979 at about 9-30 a. m. Sher Muhammad (P. W. 6) and his father Haji Ghulam Muhammad deceased aged about 70 years after offering Eid prayer in the village mosque passed through the lane in front of the house of Jahan Khan, the father of appellants. At that time, Fateh Khan and Sher Muhammad appellants, their co-accused Muhammad Khan, Muhammad Aslam and Jahan Khan emerged at the scene. Fateh Khan, Sher Muhammad and Muhammad Khan were armed with hatchets while Aslam was armed with a soti and Jahan Khan was empty handed. Jahan Khan raised lalkara and entreated his co-accused not to allow Sher Muhammad to go unhurt, whereupon the other accused opened the attack. Sher Muhammad appellant caused a blow with wrong side of the hatchet to Ghulam Muhammad deceased on the left side of his head. Muhammad Khan caused an injury with wrong side of the hatchet to Sher Muhammad on his head. Fateh Khan appellant dealt a second blow to the deceased with wrong side of the hatchet hitting him on the head on the backside. Muhammad Aslam dealt a soti blow to Sher Muhammad P. W. Hitting him on the palm of his left hand. On the alarm raised by Sher Muhammad P. M. And Ghulam Muhammad deceased, Khuda Bakhsh (P. W. 7) and Dost Muhammad (given up) were attracted to the place of occurrence. Other residents of the locality also arrived there. The assailants then went away.
5. Sher Muhammad (P. W. 6) and Ghulam Muhammad deceased were taken to Police Station, Noshera, where Sher Muhammad lodged the F. I. R. Exh. P. E. Which was recorded by Ahmad Nawaz (P. W.3) the injured were Muharrir Head Constable, Police Station, Khushab. Both the were then sent to Khushab hospital for medical examination under the custody of Manzoor Hussain F. C.
6. P. W. 1, Dr. Muhammad Riaz Ali the then Medical Officer, Civil Hospital, Khushab, examined Sher Muhammad (P. W. 6) vide medico-legal report Exh. P. A. And found the following injuries on his person :-
(1) Swelling 21" x 2" on left palm towards thumb.
(2) A contused wound II" x i` x scalp deep on the left side of the head. Both the injuries were declared to be simple and caused by blunt weapon.
7. On the same day, Dr. Muhammad Riaz Ali, examined Ghulam Muhammad, who was still alive in injured condition and noticed following injuries on his person :-
(1) A contused wound 1k" X 1/4" x scalp deep on left side of the head.
(2) A contused wound 21" x 1/3" x bone deep on the top of the head more towards right side and backward.
8. The injured was unconscious and his condition was serious. Both the injures were considered to be dangerous to life. Exh. P. B. Is the medico-legal report in respect of Ghulam Muhammad deceased. The said deceased did not regain consciousness in the hospital as reported by the Medical Officer, vide reports Exh. P. B./3 and Exh. P. B./5. He died on 27th August, 1979 and on that day at 6. 15 p. m. Dr. Muhammad Riaz Ali (P. W. 1) conducted autopsy on the dead body of the deceased. He noticed the afore-mentioned injuries on his person. On opening the scalp, he found that the right parietal bone was fractured under injury No,
2. The fracture line went downward and forward to right temporal bone and also on the other side to left temporal bone. Another fracture line from left parietal bone went backward to left occipital suture.
9. Death in the opinion of the Medical Officer occurred due to shock and compression of brain resulting from multiple head injuries. Injury No, 2 was sufficient to cause death in the ordinary course of nature while injury No, 1 was simple. Both the injuries were opined to have been caused by blunt weapon and were ante-mortem. Exh. P. C. Is the postmortem report while Exh. P. C./1 is the diagram indicating the location of injuries.
10. P. W. 8 Sher Muhammad, the then S.-I., S. H. 0, Police Station, Noshera, conduct the investigation of this case. He went to the place of occurrence and took into possession blood-stained earth vide memo. Exh. P. K. And made the same into sealed parcel. He prepared the Injury Statement and Inquest Report in respect of the deceased and despatched the dead body for post-mortem examination under the escort of Manzoor Hussain F. C. (P. W.). He arrested all the accused on 29th August, 1979. On the same day, at the instance of Sher Muhammad appellant, hatchet P. 4 (blood- stained) was recoverd, vide memo. Exh. P. L. Attested by Khuda Bakhsh (P. W. 7) and Dost Muhammad (given up). Similarly, at the instance of Fateh Khan appellant, hatchet (blood-stained)
P. 5 was recovered vide memo. Exh. P. M. In the presence of Dost Muhammad (given up) and Khuda Bakhsh (P. W. 7). This witness got prepared site plan Exhs. P. 3 and P. 3/1 by Noor Muhammad (P. W.
4) Draftsman, Khushab. He recorded the statements of witnesses under section 161, Cr. P. C. And after completing the investigation submitted the challan.
11. At trial, P. W. 6 Sher Muhammad and P. W. 7 Khuda Bakhsh, have been examined as eye- witnesses to give the ocular account of the prosecution version. Both these P. Ws. Have fully supported the prosecution case. P. W. 7 Khuda Bakhsh and P. W. 8 Sher Muhammad S.-I, the Investigating Officer, have also supported the recoveries of blood-stained hatchets at the instance of the appellants. The result in regard to these hatchets in the light of the reports P. R. And P. S. Of the Chemical Examiner and the Serologist respectively is in positive.
12. The appellants did not plead guilty to the charge but did not produce any evidence in defence.
Fateh Khan appellant in reply to question :- "Is it a fact that on 23rd August, 1979 your cattle damaged the crops of Sher Muhammad P. W. And it led to an altercation between yourself and him and he slapped you ?" replied :- "My cattle went astray into the field of Sher Muhammad and thus caused some damage to his crops at which he abused me. I also abused him in return and slapped him."
' In reply to the question "Why this case against you ?" he replied :- "On the day of occurrence, I was coming back from the village mosquse after offering Eid prayer and so was the deceased and Sher Muhammad P. W. While we were still in the lane, Sher Muhammad P. W. Again picked up a quarrel with me over the incident of 23rd July, 1979 and there was an exchange of abuses and hurling of stones between us. The complainant has given a serious turn to the sudden quarrel in order to make a grave offence."
13. The other appellant namely, Sher Muhammad claimed complete innocence.
14. No question has been asked from the doctor as to whether the injuries noticed by him on the person of the deceased and Sher Muhammad (P. W. 6) could be caused as a result of stones.
Obviously, on account of exchange of stones between the two factions injuries on the top of the head as were received by Ghulam Muhammad deceased are not ordinarily possible.
15. The motive as alleged by the prosecution that two days prior to the occurrence, Fateh Khan appellant's cattle damaged the crop of Sher Muhammad P. W. And there was exchange of abuses between two factions is common ground between the parties. There is no background of any other enmity.
16. It has been contended on behalf of the appellants that motive was on the side of the complainant party and not on that of the appellants. This contention is devoid of any substance as this is a common ground, as already observed, between the parties that two days prior to the occurrence, cattle of Fateh Khan appellant damaged the crop of Sher Muhammad P. W. On which there had been exchange of abuse between the two.
17. It is next urged that the eye-witnesses are interested and closely related witnesses while independent persons who were present on the spot at the time of occurrence have not been produced. This is true that Sher Muhammad (P. W. 6) is the son of the deceased while Khuda Bakhsh (P. W. 7) is the son-in-law of the deceased but we cannot lose sight of the fact that Sher Muhammad is an injured witness. There can be no doubt about his presence at the time of occurrence and there is no allegation that his injuries were self-suffered. There is no history of any previous enmity between the appellants and the P. W. The P. Ws. Cannot, therefore, be branded as interested and untrustworthy witnesses.
18. It has also been urged on behalf of the appellants that attesting witness namely, Khuda Bakhsh (P. W. 7) being a son-in-law of Ghulam Muhammad deceased, the evidence regarding recoveries is also not trustworthy. The recovery of blood-stained hatchets besides Khuda Bakhsh (P. W. 7) is also proved by the testimony of Sher Muhammad (P. W. 8), the Investigating Officer against whose independence nothing has been suggested on the records.
19. It has been lastly urged that this is a case of sudden affair and not a premeditated murder and, therefore, a conviction under section 302/34, P. P. C. Is not warranted.
20. In view of the nature of injury No, 2 and the damage it has caused it cannot be said that it was a case of sudden affair resulting in unpremeditated death of the deceased. Both the appellants caused injuries on the head, a vital part of the body of the deceased, a person more than 70 years old with hatchets (wrong side of the blade). They cannot, in the circumstances, claim the benefit of the plea of unpremeditated death or a sudden affair.
21. In the light of the foregoing circumstances, and observations, it is concluded that the offence of murder punishable under section 302/34, P. P. C. Is established beyond reasonable doubt against both the appellants, and, therefore, no exception can be taken to their conviction recorded by the learned trial Judge under the said charge.
22. As admittedly there is no background of any previous enmity and the appellants caused one injury each by using the wrong side of the hatchet to the deceased, the learned trial Judge justifiably refrained from inflicting capital punishment, a normal penalty under section 302/34, P. P.
C. On them.
23. In this view of the matter, the Appeal as also the Criminal Revision are dismissed while conviction and sentence of the appellants are upheld.