' The appellants Muhammad Hussain son of Wazir Ali, Nemat Ali son of Wazir Ali, Allah Ditta son of Wazir Ali, Jalal Din alias Juma son of Mangal Din and Muhammad Ilyas son of Mangal Din have been convicted qarfaraz Ahmad Khan, Additional Sessions Judge, Faisalabad 20th October, 1979 for offences under sections 302, 325 committing the murder of Nur Muhammad and causing injuries to P. Ws. Umar Din and Ghulam Rasul, and have been sentenced as under : ' Muhammad Hussain and Allah Ditta appellants have been convicted under section 302/149, P. P.
C. And sentenced to life imprisonment and a fine of Rs, 2,000 each, in default whereof to suffer further R. I. For 2 years' each. The whole of the amount, recovered, has been ordered to be paid as compensation to the heirs of the deceased.
' Nemat Ali, Muhammad Ilyas and Jamal Din appellants have been convicted under section 325, P.
P. C. And sentenced to 3 years' R. I. Each, for causing grievous hurt to Nur Muhammad deceased.
' Muhammad Husain, Nemat Ali, Muhammad Ilyas and Jamal Din appellants have been convicted under section 323, P. P. C. And sentenced to 6 months', R. I. Each, for causing injuries to Umar Din P.
W. Jamal Din appellant has been further convicted under section 323, P. P. C. And sentenced to one month's R. I. For causing injuries to Ghulam Rasul P. W.
' The sentences of all the appellants have been ordered to run concurrently.
2. The occurrence in this case took place in the village abadi of Chak No, 335/0. B. In front of the house of Nur Muhammad deceased at 3 p.m. On the 10th September, 1976. The F. I. R. Exh. P. J./1 was recorded at Police Station Rajana on 11th September, 1976 on the statement Exh. P. J. Of Muhammad Siddiq (P. W. 5), recorded at Bus Stand Rajana by Javed Nisar, A. S.-I. (P. W. 11). Umar Din P.. W. 6, and Ghulam Rasul P. W. 7 were also injured in this occurrence.
3. The prosecution case briefly is that Nur Muhammad deceased was filling the drain of rain water in front of his house for passing over his cart (gadda), Umar Din P. W 6, his son was also with him, the appellants variously armed came there and attacked the deceased. Allah Ditta and Muhammad Hussain appellants gave two successive blows respectively with sota and hatchet on the head of Nur Muhammad deceased. Muhammad Ilyas appellant gave a spear blow on the medial side of his left upper arm. Muhammad Hussain appellant gave the second blow with his hatchet on the head of Nur Muhammad deceased. The other appellants also dealt sofa blows on the person of the deceased. When Umar Din P. W. 6 intervened, he was also given injuries by Muhammad Husain, Nemat Ali, Muhammad Ilyas and Jamal Din appellants. Ghulam Rasul P. W. 7 was given a sofa blow by Jamal Din appellant. The occurrence was seen by Muhammad Siddiq complainant (P. W. 5), Umar Din P. W. 6, Ghulam Rasul P. W. 7 and Abdul Hag P. W. (given up as having been won over).
' After the appellants bad left the place of occurrence, the deceased dand the other injured were taken to Civil Hospital, Rajana and the Toba Tek Singh but as in both these hospitals the doctors available the deceased and Umar Din P. W. 6 were taken" Hospital where they reached after 8-9 p.m. And werP by Dr. Capt. Muhammad Idrees (P. W. l)ttt-". At the time of examination Nur Muhair The doctor noted eight injuries on his person. Injury No, I was hematoma on the top of head measuring 21" x 2", one incised wound on the right side of the head above the right ear, one on the forehead, 2" above the right eye-brow, another hematoma measuring 1 "x li" on the right side of forehead, f" anterior to right ear, mandible was found dislocated from left temporal mandibular joint, multiple scratching on lateral side of right eye- brow and abrasions on the right side of forehead and little finger. Injuries Nos. 1 and 2 were kept under observation, injury No, 6 was declared grievous and rest of the injuries were found to be simple. Injury No, 2 on the right side of the head above the right ear was found to have been caused by a sharp-edged weapon.
' The doctor on the same day at 11 p.m. Examined Umar Din P. W. 6 and noted an incised wound on the left side of head 2i" x 3/8" scalp deep, 4" above the left ear, a stab wound on medial side of left upper third right upper arm 3/8" x 1/8" x 1-7/8". Complaints of pain on right and left wrist joints were also recorded as injuries No, 3 and 4. Injuries No, 1 and 4 were kept under observation, injuries No, 2 and 3 were declared simple, injury No, I was found to have been caused by a sharp-edged weapon and injury No, 2 was found to have been caused by a sharp-edged pointed weapon.
' Nur Muhammad died in the morning at 8-9 a.m. Muhammad Siddiq complainant (P. W. 5) then proceeded to Police Station Rajana for lodging the first information report.
4. The motive for the occurrence was that the drain which was being filled by the deceased Nur Muhammad, bad been dug out by Nemat Ali appellant for passage of the rain water upto the village tank. The course of the drain was from the house of the appellant Nemat Ali by passing from in front of the house of Nur Muhammad deceased who had raised the front surface of his house by putting earth.
' The A. S.-I. Javed Nisar P. W. 11 after recording the first information report, proceeded to the Civil Hospital, Pirmahal prepared the injury statement and the inquest report Exh. P. H./1 and P. H./2 on the dead body of Nur Muhammad deceased, despatched the same for post-mortem examination, and after recording the statement of Umar Din P. W. 6 who was admitted to the hospital, he proceeded to the spot. He inspected the spot, collected the blood-stained earth and took the same into possession vide memo. Exh. P. L., recorded the statements of Ghulam Rasul and other P. Ws. On 12th September, 1976 the A. S.-I. After recording the statement of Ghulam Rasul P. W. 7, on finding him injured, sent him to the hospital for medical examination. He was medically examined by Dr. Capt. Muhammad Idrees (P. W. 1) who noted one abrasion on the left scapula measuring 1k" x 1/8".
The injury was declared simple and was found to have been caused by a blunt weapon.
5. All the appellants were arrested on the 12th September, 1976. The investigation continued. On 16th September, 1976 Muhammad Hussain appellant led to the recovery of blood-stained hatchet Exh. P.
2 from his residential house which was taken into possession vide memo. P. M. Allah Ditta appellant led to the recovery of blood-stained from his house which was taken into possession vide memo.
Appellant led to the recovery of blood-stained :P. 4 from the bathroom of his house which was taken into possession vide memo. Exh. P.
0. Muhammad Ilyas appellant got recovered blood-stained spear (P. 5) from his house which was taken into possession vide memo. Exh. P. Q. Jamal Din alias juma appellant led to the recovery of bloodstained sota (P. 6) from his house which was taken into possession vide memo. Exh. P. R. All the above-said weapons were sealed into parcels. Wali Muhammad P. W. 8 and Iqbal P. W. (not produced) witnessed the recoveries. After the completion of necessary investigation the challan was submitted to Court.
6. At the trial the prosecution produced eleven witnesses in all. P. W. Abdul Haq, who was an eye- witness, was given up as having been won over, and P. W. Iqbal who was attesting witness of recoveries, was given up as unnecessary. The reports of the Serologist and the Chemical Examiner were also produced in evidence. The appellants were charged under sections 148/149, 302/149 and 307/149, P. P. C. They pleaded not guilty and in defence examined Faiz Muhammad Patwari Halqa as D. W.
1. Nemat Ali appellant also produced certificate Exh. D. D. And closed the defence.
7. Appellants Allah Ditta, Nemat Ali and Muhammad Hussain are real brothers. They are not related to Jamal Din and Muhammad Ilyas appellants, who are also real brothers. The two sets of the accused belong to different castes. P. W. 5 Muhammad Siddiq's sister's daughter is married to Umar Din P. W.
6. Umar Din is son of the deceased Nur Muhammad. Father of P. W. 7 Ghulam Rasul is real brother of Nur Muhammad deceased. Abdul Haq (given up P. W.) is also the son of another brother of the deceased.
8. For eye-witness account, the prosecution examined Muhammad Siddiq complainant (P. W. 5).
Umar Din P. W.
6. And Ghulam Rasul P. W.
7. Muhammad Siddiq P. W. 5 has corroborated his statement Exh. P. J. He has stated that the deceased had raised the level of the ground in front of his house by putting earth, in order to pass through because the rain water used to be collected in the bazar. Nemat Ali appellant had dug out the drain which passed in front of the house of Nur Muhammad deceased for passage of the rain water to the village tank. On the day of occurrence the deceased was bringing the cart to his house with his son Umar Din P. W.
6. He started filling the drain to pass his cart. The appellants armed with various weapons came there and after raising lalkaras attacked the deceased and caused him injuries. When Umar Din P.
W. 6 intervened, he was also injuried by the appellants. Ghulam Rasul P. W. 7 who had come there, when tried to intervene was also given an injury. According to him the occurrence was witnessed by him, Umar Din P. W. 6, Ghulam Rasul, P. W. 7 and Abdul Haq (given up P. W.) He has given the details of the injuries caused by the appellants individually to the deceased, and P. Ws. Umar Din and Ghulam Rasul. His statement has been corroborated by P. Ws. Nos. 6 and 7, i,e, Umar Din and Ghulam Rasul, respectively, The eye-witness account is corroborated by the recoveries of blood- stained weapons at the instance of all the appellants, and the medical evidence as well. The recoveries have been proved through the evidence of Wall Muhammad P. W. 8 and Javed Nisar, A.
S.-I. P. W.
11. Wali Muhammad has been stated to be a refugee from the village of the deceased in India. The weapons of crime were sent to the office of the Chemical Examiner and the Serologist, and from the reports of the Chemical Examiner and the Sergologist, they were found to have been stained with human blood.
9. The contentions of the learned counsel for the appellants are that the prosecution witnesses are related and so interested. Muhammad Siddiq complainant (P. W. 5) and Ghulam Rasul (P. W. 6) had not witnessed the occurrence. Amplifying the argument, he has submitted that had Ghulam Rasul been injured as stated, he would have got himself medically examined in Pirmahal from the doctor, when according to him he had gone to the hospital alongwith the deceased. About Muhammad Siddiq complainant (P. W. 5) he has contended that his name is not mentioned in the column of the name of relatives in the medico-legal certificates Exhs. P. A. And P. B., of Nur Muhammad deceased and Umar Din P. W. 6, respectively. Instead the name of one Muhammad Ali is mentioned therein. He has also argued that had he seen the occurrence, he would have reported the same earlier because he was not injured himself. He has contended that the P. Ws. Have admitted that they had gone to Rajana Hospital but none of them approached the Police for the registration of case (the P. S. Was at a short distance from the hospital) shows that the first information report was deliberately delayed for consultations. He has argued that the story of non- availability of the doctor at Toba Tek Singh has been cooked up to cover the delay in lodging the first information report. Much stress has been laid on the fact that even after hating got the deceased and the other witnesses admitted to Civil Hospital, Pirmahal, neither the complainant nor any P. W. Proceeded to the Police Station to lodge the F. I. R. According to him injury No, 2 on the head of the deceased could not have been inflicted by a kulhari blow and so the participation of Muhammad Hussain appellant who was alleged to have given a hatchet blow, is doubtful.
10. I have gone through the evidence and considered the arguments advanced by the learned counsel for the appellants. No enmity whatsoever of the P. Ws. Or the deceased has been suggested with Nemat Ali and his brothers Muharnmad Hussain and Allah Ditta appellants. In cross-examination, however a question has been put regarding some dispute of an ahata between Jamal Din and Muhammad Ilyas appellants on one side and Nur Muhammad deceased on the other. The allegations is that half of the ahata was in possession of Jamal Din and Muhammad Ilays. Nur Muhammad deceased wanted them to vacate which they had refused.
There is no further suggestion as to what happened thereafter. Nothing has been asked as to what happened after the refusal of the two appellants to vacate the ahata. It seems that the deceased accepted the position because had he insisted, there would have been some dispute and questions must have definitely been asked regarding such a dispute. As such the evidence of the P.
Ws. Cannot be thrown away merely on the ground of relationship. The evidence of the P. Ws.
Cannot be thrown away unless it is found that there is some bias and enmity and that they are found to have perjured or attempted to involve the accused falsely. With such a background, this is not the position in this case. The delay in lodging the F. I. R. Has been explained. The movement of the P. Ws. Alongwith the deceased from one hospital to the other shows their anxiety of' the life of the deceased. No mala fides can be seen through this anxiety. There is nothing to conclude that the story of the deceased and Ghulam Rasul injured, having been taken to Civil Hospital at Rajana and to Toba Tek Singh is concocted to explain the delay in lodging the F. I. R. The certificate Exh. D.
D. Cannot be deemed to mean that the doctor was actually present in the Hospital at the time these injured were taken to the Hospital. As the condition of the deceased was serious, the P. Ws.
May not have thought it worthwhile to wait and search for the doctor, who though not on leave may have gone somewhere out of the hospital and as Toba Tek Singh is nearer to Rajana than Pirmahal, there is nothing unnatural if the injured were taken to hospital at Toba Tek Singh and when they were unlucky not to get the services of doctor there also, they proceeded to Pirmahal. It is not difficult to assess that the condition of the deceased was such that the anxiety of the persons accompanying him was greater to take him to the hospital than their responsibility to report the matter to the Police. I do not think that it matters much if the name of Muhammad Siddiq, P. W. 5, is not mentioned in the column of relatives in the medico-legal certificates of the deceased and the Umar Din, P. W.
6. The name of one was to be mentioned and, may be some Muhammad Ali, was also accompanying because when two injured persons were being carried, one very seriously, persons other than the P. Ws. Must be accompanying the injured persons, and this is not uncommon in our village society. After such occurrences even the distinct sympathisers also try to be of some use to the injured persons for medical treatment, as such there is no force in the argument of the learned counsel for the appellants that Muhammad Siddiq, P. W. 5, was not present. The contention of the learned counsel for the appellants that since Ghulam Rasul, P. W. 7, did not get himself examined in Pirmahal Hospital on the first day shows that he was not present on the spot, is stretching the argument too long. He is nephew of the deceased and first cousin of Umar Din. In the condition that his uncle and his first cousin were, he would not have bothered about such a simple injury on his person. In this anxiety to look after these injured persons he might not have attached much importance to his own medical examination. His not appearing before the Police at Pirmahal and proceeding to spot is also not inconsistent with such situations, after the registration of case he would have thought that the Police will be visiting the spot and so he proceeded to the spot to be able to put before the Police their point of view about the spot, as such the contention of the learned counsel for the appellants does not weigh with me so as to rule out the evidence of Ghulam Rasul, P. W.
7. The argument of the learned counsel for the appellants that the incised wound on the head of the deceased could not have been suffered by a hatchet, is just a surmise. When injuries are caused by such weapons it is not necessary that' the injury would be caused in consonance with their size. To assess the manner of injury is difficult because the injuries will be suffered in consonance with the force with which a person launches the attack, the way he wields the weapon, the position of the sufferer and the way in which he resists the same. There is no data to conclude con-clusively that this injury was not the result of the hatchet. The plea of the appellants Nemat Ali and his brothers that they had been involved because they had helped Muhammad Ilyas and Jamal Din appellants in the dispute of ahata with the deceased, does not find favour with me because the dispute with them by itself was not such as to create enmity with the deceased or his relatives to involve them falsely, particularly view of the fact that nothing has been brought on record as to whether anything happened after the refusal of the two appellants to vacate the ahata. Their plea, however, shows that the appellants inter se had some sort of friendship and as Nemat Ali and his brothers claimed to be sympethetic to the other two, the others would be helpful to Nemat All and his other brothers.
The evidence of recoveries of blood-stained weapons has not been shaken. Mere fact of Wali Muhammad, (P. W. 8) having migrated from the original village of the deceased, is no ground to discard his evidence. There is no suggestion that Javed Nisar, A. S.-I. (P. W. 11) planted these weapons for any reasons. These two witnesses have corroborated the statements of each other with regard to the recovery of weapons of offence.
' For the reasons enumerated above no doubt is left in my mind that all the appellants participated in the occurrence. The other aspect of the case which requires consideration is that the existence of some dispute of the deceased with Jamal Din and Muhammad llyas appellants regarding the ahata about which I have already concluded, did not strain the relations or at least there is no evidence of any straining of relations because of so-called dispute. There is no any other iota of evidence to suggest that the parties were inimical to each other. No other motive is alleged by the prosecution, nothing else has either been suggested by any of the appellants. In view of this the case needs examination whether the occurrence was a premeditated one ? There is no evidence that any of the appellants saw the deceased filling the drain and that called the other appellants or that thereafter all of them having made preparations reachetl the spot attacked the deceased and caused his death. What appears is that the deceased, to pass his cart was filling the drain and the appellants who were also living. Nearby, having seen him doing that stopped him to D which the deceased quite naturally would have resisted because he had to take the cart across the drain and as a result of which the occurrence took place suddenly wherein the deceased lost his life. The case of the appellants in such circumstances would fall within Exception 4 of section 300, P. P. C.
Which reads as follows : "Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner."
' As a result of above discussion, I am inclined to hold that the case of the appellants Muhammad Hussain and Allah Ditta does not amount to culpable homicide, as such their conviction and sentence under section 302, P. P. C. Is set aside. They are held guilty of offence under section 304, Part I, P. P. C. Accordingly they are convicted under section 304, Part I, P. P. C. And sentenced to 10 years' R. I. Each, and a fine of Rs, 2,000 each in default whereof to undergo further R. I. For one year each. The fine, if recovered, shall be paid as compensation to the heirs of the deceased.
' The appeal of Muhammad Hussain with regard to his conviction and sentence under section 323, P. P. C. For causing hurt to Umar Din, P. W. 6 is rejected. His sentences shall, however, run concurrently. The appeal qua Nemat Ali, Muhammad Ilyas and Jamal Din appellants is rejected.
' All the appellants shall, however, be given the benefit of provisions of section 382-B of the Code of Criminal Procedure. The appellants Nemat Ali, Muhammad Ilyas, Jamal Din and Muhammad Hussain who have been released on bail, shall be arrested and lodged in jail to suffer the remaining portions of their sentences. .