' Ramzan aged 35 years, Allah Yar aged 60 years, Mukhtar aged 25 years and Shafi aged 25 years were prosecuted alongwith Hag Nawaz acquitted accused by learned Additional Sessions Judge, Faisalabad for the murder of Shameer aged 60 years. They were convicted and sentenced to imprisonment for life and a fine of Rs, 5,000 or in default three years' R. I. Each. They came up in appeal in this Court.
2. Before the hearing of this appeal, I issued notice to all the appellants to show cause as to why, in case their appeal is rejected, they should not be burdened with compensation under section 544- A, Cr. P. C. This notice was accepted by Mr. Muhammad lqbal Malik, Advocate appearing on behalf of the appellants. The facts of the case are that Mahmand P. W. 10, a brother of Shameer deceased was present in his field on 26th June, 1978, at evening time. He found the cattle of Dittu, a boy of 12/13 years, damaging his crop. Mahmand slapped Dittu who went away weeping. A short while thereafter, Shafi appellant armed with hatchet while the remaining accused armed with sticks came there and challenged Mahmand P. W. In the meanwhile on hearing the alarm, Shameer deceased reached the spot to save his brother. Ramzan gave stick blow on the head of Shameer deceased. Allah Yar gave another blow on the forehead of Shameer, Mukhtar accused gave third stick blow which also landed on the forehead of Shameer who fell down. Muhammad Shafi gave hatchet blow to Shameer whereafter all the accused gave more blows to Shameer deceased. The occurrence was witnessed by P. W. 8 Sardool, P. W. 9 Noor Ahmad and P. W. 11 Shera besides Mahmand P. W.
10. After the occurrence, Mahmand P. W. 10 took the deceased to hospital where he was examined at 10-30 p. m. After the medical examination, the F. I. R. Was lodged at 5-15 p. m. On 27th June, 1978, at P. S. Pir Mahal then in District Faisalabad. The police undertook investigation.
' The deceased Shameer who was admitted in hospital expired at 8-30 p. m. On 27th June, 1978.
3. The prosecution examined P. W. 8 Sardool, P. W. 9 Noor Ahmad, P. W. 10 Mahmand and P. W. 11 Shera as eye-witnesses. The medical evidence was furnished by Dr. Muhammad Idrees who medically examined Shameer deceased when he was brought to the hospital. On the same day at 11-45 p. m., he also medically examined Mukhtar Hussain accused. P. W. 2 Dr. Ghulam Muhammad conducted post-mortem examination on the dead body of Shameer deceased.
4. On 29th June, 1978, Muhammad Shafi accused led to the recovery of hatchet P. 3 which was taken in possession, vide memo. Exh. P. H., Allah Yar accused led to the recovery of sofa P. '4 which was taken in possession vide memo. Exh. P. J., Ramzan accused led to the recovery of sofa P. 5 which was taken in possession, vide memo. Exh, P. K. And Mukhtar accused led to the recovery of sofa P. 6 which was taken in possession, vide memo. Exh. P. L. All these four recoveries which were made on 29th June, 1978 were witnessed by P. W. 8 Sardool, P. W. 9 Noor Ahmad and P. W. 12 Aftab Ahmad A. S.-I. The recoveries of these weapons which were found blood-stained, vide report of Serologist Exh. P. R. Were disbelieved by the trial Court. I have gone through the evidence of recoveries and I agree with the findings of learned Additional Sessions Judge and disbelieve the recoveries.
5. I have heard the learned counsel for the appellants and have gone through the record of this case. It is submitted by the learned counsel that the F. I. R. Was lodged after a delay of 24 hours ; that the medical evidence contradicts the ocular evidence ; that the motive with the appellants is not proved on the record ; that the evidence of the witnesses has been disbelieved as against Haq Nawaz and is not divisible ; that the injuries on the person of Mukhtar Ahmad have not been explained ; that it was a sudden affair and the occurrence took place without premeditation and as such section 34, P. P. C. Was not attracted and finally that it was a case of self-defence.
6. I have considered the arguments. The two eye-witnesses P. W. 8 Sardool and P. W. 11 Shera are totally independent witnesses. They are not related to the deceased and have no enmity with the accused. Their evidence cannot be discarded. Even Noor Ahmad P. W. 9 who is son-in-law of Mahmand P. W. 10 (brother of the deceased) had no enmity with the accused. The accused Mukhtar has admitted the occurrence. The place of occurrence and the time of occurrence is also admitted. However, it is contended by him that it was Shameer deceased who gave him hatchet blow and in order to defend himself he inflicted injuries to the deceased. In the present case, it is not brought on record that Dittu, the small boy who was given slaps by Mahmand P. W. 10 was in any way related or connected with the accused. Thus, it cannot be said that the accused had any direct or immediate motive for the present occurrence. It appears that the accused and the deceased are tenants of Khadim Hussain. They were neighbours in the same Ihata and they quarrelled without any premeditation. Even the evidence of the eye-witnesses indicates that Haq Nawaz accused had reached the spot after the deceased had fallen on the ground. It is also in evidence that some of the accused were present at the spot when the quarrel started and the others came at a later stage. Mukhtar accused was injured and is admitted by P. W. 8 Sardool that at the time of occurrence he saw Mukhtar accused bleeding. This means that Mukhtar was injured at the time of occurrence but his injuries have not been explained by the prosecution. The story that Dittu was given the beating by Mahmand P. W. 10 is also very doubtful which is the immediate motive in this case. In the F. I. R., it was stated by Mahmand P. W. 10 that he had slapped Dittu in the evening but in his statement during the trial he changed his statement to say that he had given the slaps to Dittu at 10/11 a. m. On the day of occurrence. This is a material improvement and appears to have been made to make it a case of premeditated murder. From the facts and circumstances of the case it appears that Shameer deceased and Mukhtar accused were present at the place of occurrence and they suddenly picked up quarrel the cause of which is shrouded in mystery. Mukhtar was given blow by Shamee deceased who then caused injuries to Shameer deceased. This being the situation I find that the delay in F. I. R. Also become material. The occurrence took place at evening time on 26th June, 1978 but the F. I. R was lodged at the Police Station on 27th June, 1978 at 5-15 p. m. The Police Station was only eleven miles from the place of occurrence. The deceased Shameer was medically examined on 26th June, 1978 at 10-30 p. m.
Whereafter the report could have been lodged without further delay. It appears that the report was lodged after mutual consultation in order to rope in more number of accused.
7. In view of the above discussion, I find that the case against Ramzan, Allah Yar and Shafi accused is not free from doubt. They are given the benefit of doubt and acquitted.
8. So far as Mukhtar accused is concerned he has admitted the occurrence and pleaded self- defence. In my opinion he has exceeded his right of private defence. He received only one injury by sharp-edged weapon which was simple in nature. The second injury on his person was described as only a feeling of pain on the right elbow. The deceased Shameer received seven injuries on his person ; one injury was by sharp-edged weapon while the remaining six were by blunt weapon. All these injuries were on the head, and forehead. Thus it is clear that Mukhtar accused after disabling Shameer deceased acted cruelly and caused a large number of injuries which were not required for his defence. In this vie of the matter, I convict Mukhtar accused under section 304. Part I, P.P. C.
And sentence him to imprisonment for life and a fine of Rs, 1,000 or in default one year R. I. He shall also pay Rs, 4,000 as compensation under section 544-A, Cr. P. C. Or in default six months' further R.
I. The amount of Rs, 4,000 will be paid to the heirs of the deceased. Mukhtar appellant will also be given the benefit of section 382-B, Cr. P. C. For computing the sentence in Jail.