' GULBAZ KHAN, J.-Muhammad Sharif aged forty-five years, Muhammad Anwar aged twenty years and Muhammad Ashraf aged seventeen years sons of Muhammad Sarwar were convicted on 6- 4.1980. By the learned Sessions Judge, Mianwali, for offence under section 302/34, P. P. C.
Muhammad Sharif was sentenced to death and a fine of Rupees two thousand or in default in payment of fine to undergo rigorous imprisonment for two years. Muhammad Anwar and Muhammad Ashraf appellants were sentenced to imprisonment for life and a fine of Rupees two thousand each, or in default in payment thereof to undergo rigorous imprisonment for two years.
The fine, if recovered, was ordered to be paid to the legal heirs of the deceased as compensation.
The appeal filed by the three convicts, the Murder Reference and revision petition for the enhancement of sentences of Muhammad Anwar and Muhammad Ashraf are being disposed of by this judgment.
2. Muhammad Akbar deceased was sister's son of Muhammad Sharif appellant. Muhammad Anwar and Muhammad Ashraf appellants are consanguine brothers of Muhammad Sharif appellant. Mst. Ghulam Fatima (sister of Muhammad Sharif appellant) inherited property of her father Sawar Khan comprising two rooms and a courtyard constructed over four mar/as in Muhallah Wandhi Ghund Wali, City Mianwali. The appellants were not happy over the said inheritance and wanted their sister Mst. Ghularn Fatima to surrender the possession but Muhammad Akbar deceased, his brother Muhammad Azim complainant (P. W. 5) were not willing to surrender the possession. The appellants bore grudge on that account.
3. On 4-6-1976, at about 6.00 a. m., the three appellants assaulted Muhammad Akbar deceased, caused him injuries and threw him into the ditch and pelted brickbats at him with the result that Muhammad Akbar expired. The occurrence was witnessed by the neighbourers Ataullah Qasab aged fourteen years (P. W. 7) and Abdullah Awan aged twenty-two years. Muhammad Azim complainant returned to his house at about noon time, on coming to know of the occurrence. He found the dead body of his brother Muhammad Akbar in the ditch situated in the courtyard of his house. Muhammad Abdullah narrated the occurrence to Muhammad Azim complainant.
4. Ghayur Hussain Shah Sub-Inspector was Incharge of City Police Post, Mianwali. He learnt about the occurrence, while he was present in District Courts, Mianwali. He reached the spot at about 1.00 p. m. Muhammad Azim complainant made statement Exh. P. A. Which was sent to the Police Station for the registration of the case. Ahmad Bakhsh Muharrir Head Constable (P. W. 1) recorded formal F.
I. R., at Police Station Sadar Mianwali at 2-00 p. m. The S. H.
0. Prepared injury statement and inquest report of Muhammad Akbar, after the dead body was taken out of the ditoh. He sent the dead body for post-mortem examination. He took into possession pakka brick P. 4 and katcha brick P. 5 (both blood-stained) from inside the ditch and sealed them into a parcel. He arrested the three appellants on 11-6-1976. The appellants could not be arrested earlier in spite of the best efforts of the Sub-Inspector. The appellants were challaned after investigation.
5. Ata Ullah (P. W. 7) and Abdullah (P. W. 8), who were absolutely disinterested witnesses, fully supported the prosecution case and involved the three appellants in their statements made before the trial Judge. Both these witnesses were natural as they were the neighbourers of the deceased and the appellants. On hearing the noise raised by Muhammad Akbar, they had come on to the roof and then witnessed the occurrence while standing over the roof of the Kotha of Anwar appellant. They narrated the occurrence to Muhammad Azim (brother of Muhammad Akbar deceased) when Muhammad Azim had come to the spot on coming to know of the occurrence.
6. The learned counsel for the appellants contended that there was sufficient delay in lodging the F.
I. R., which made the case doubtful ; that the deceased had come to the spot with some ulterior motive as he had started living at brick kiln with his brother Muhammad Azim, two months prior to the occurrence ; that the statements of the two eyewitnesses were discrepant and thus no reliance could be placed on their statements : that the origin of the fight was not known and the two eyewitnesses had come on to the roof's top after hearing the noise raised by the deceased ; that the appellants were not armed with any deadly weapon and the allegation was that they had thrown the deceased into the ditch and pelted stones at him and it was an indicative of the fact that the appellants had no intention to commit his murder ; that the appellants had no motive to cause the death of Muhammad Akbar ; that Muhammad Sharif was a step-brother of Muhammad Anwar and Muhammad Ashraf and thus they could not have a common motive to commit the murder. It was further submitted that even if the entire prosecution version was accepted, sentence of death could not have been awarded to Muhammad Sharif as the origin of the occurrence was shrouded with mystery.
7. The contentions of the learned counsel for the appellants have been considered in the light of the material on record. The occurrence had taken place at about 7.00 a. m. In the courtyard of the deceased and the appellants. It was witnessed by the two neighbourers Ataullah and Abdullah, who were aged about eleven and nineteen years, respectively, at the time of occurrence. The affair was between the same family. Muhammad Azim complainant was employed as Generator Driver at P. A. F. Base, Mianwali. He was informed about the occurrence there and he rushed to the spot, Ghayur Hussain Shah Sub-Inspector also learnt about the occurrence in District Courts, Mianwali and he reached the spot at about 1.00 p. m. In the circumstances of the case, we cannot hold that delay in this case had made the prosecution case doubtful. Muhammad Azim had learnt about the occurrence through disinterested witnesses, namely, Ataullah and Abdullah and he lodged the F. I.
R. According to the version given by the said two witnesses.
' There was ample evidence on the record to show that mother of the deceased inherited the property of her father Muhammad Sawar after his death. Being the daughter, she was legally entitled to inherit her share of the property of her father. She inherited four marlas of land, over which two Kothas had been constructed. Her brothers (the three appellants) wanted her to surrender her share but she and her sons had not agreed to it. The three appellants had motive against the deceased.
' The doctor had noticed eighteen injuries on the person of the deceased. Some injuries consisted of more than one injury. The total number of injuries comes to twenty-eight. The deceased had three lacerated wounds on the middle of lower lip. Two teeth below this injury were fractured. The deceased had contusion marks on the cheek, left mandible right upper abdomen, right elbow and finger of the right hand. Injuries Nos. 13 and 14 were fatal. Injury No, 13 was a contusion mark on the right chest. Right third rib was fractured under injury No, 14, while left fifth rib was fractured under injury No,
13. Both the pleurae were injured under injuries Nos. 13 and 14. Right lung was injured under injury No, 14, while left lung was injured under injury No,
13. In the opinion of doctor, the deceased died on account of shock and hamemorrhage as a result of injuries Nos. 13 and 14, which were sufficient to cause death in the ordinary course of nature. No doubt, the deceased had neither fire- arm injuries nor injuries with sharp-edged weapon, but it was quite clear from the number and nature of injuries and the fact that the deceased was thrown A into the ditch, which was eight and half feet deep, and thereafter, brickbats were thrown at him, the intention could be nothing less than. Murder.
' Muhammad Azim complainant stated during examination-in-chief, that he alongwith his mother and brother lived in the disputed Kothas, during the lifetime of his maternal grandfather Muhammad Sawar. He further stated that his mother inherited her share in the estate of her father measuring about four Mar/as, where two Kothas had been constructed and the accused were not willing to give her share and told her to vacate the premises. During cross-examination, Muhammad Azim stated that he and the deceased were living at the brick kiln, two months prior to the occurrence. It was further brought in cross-examination that the complainant, his brother and mother lived in the disputed property for about seven years. Ataullah P. W., a minor boy stated that the household articles of the deceased and his brother were lying in the disputed Kotha. It was clear from the evidence that although the deceased and his brother started living at the brick kiln, they had their household articles lying in the disputed Kotha. They had not surrendered the possession of the share of their mother. The conduct of the deceased in going to his Kotha was not unnatural. Being the owner of the Kotha, he had undisputed - right to visit it. It was not an odd hour time as urged by the learned counsel for the appellants. The occurrence had taken place at about 7.00 a. In. The sunrise time on the day of occurrence was 4.56 a. m. The occurrence had taken place about two hours after sunrise.
' It was brought on the record during the cross-examination of Abdullah P. W. That three/four months prior to the occurrence, Akbar deceased and Sharif appellant had a fight, in which arm of Sharif accused had been broken and the case was registered against Akbar deceased, Anwar and Muhammad Sharif appellants. The cause of assault was the dispute over the house, where the accused and the deceased lived. The witness further stated that the parties had, however, compromised that occurrence. This piece of evidence would show that in that occurrence Anwar and Ashraf appellants had sided with the deceased. The said two appellants could not have been falsely involved in this case, if they had not been the real culprits. It was a material circumstance against the said appellants.
8. The case was also investigated by Ameer Khan Sub-Inspector, Lyallpur (now Faisalabad). He had recorded the statements of Muhammad Azim, Muhammad Abdullah and Ataullah. The three witnesses were confronted with certain portions of their statements Exh. D.A., D B. And D.E., respectively, recorded by Ameer Khan Sub-Inspector. The three witnesses categorically denied the suggestion that they had named Mst. Bharai (mother of the accused) and Mst. Sat Bharai (wife of Muhammad Sharif appellant). Ameer Khan Sub-Inspector was not examined in Court. The defence also did not feel the necessity of producing him in defence. This contradiction of the statements of the three eye-witnesses was not rightly pressed by the learned counsel for the appellants as the case of the prosecution right from the beginning till the end was that Muhammad Akbar was done to death by the three appellants. It is not understood as to how Ameer Khan Sub-Inspector had introduced the two ladies referred to above in the statements of the said three witnesses. This fact could have no bearing on the statements of the three witnesses referred to above.
9. Muhammad Azim admitted in cross-examination that Mst. Rukia was mother's daughter of Muhammad Sharif appellant and the deceased claimed Mst. Rukia as his legally-wedded .Wife but she had disputed the claim of the deceased and there was litigation between the two on the said issue. It was suggested to the complainant if in the early hours of the day of occurrence, the deceased accompanied by an unknown person forcibly caught hold of Mst. Rukia from the house of appellants and the ladies had caused injuries to the deceased with dandas and the deceased fell into the ditch because of darkness, whereas his companion managed to escape. This suggestion was denied by the complainant. Muhammad Sharif appellant stated before the trial Court in his statement recorded under section 342, Cr. P. C. That the deceased had claimed Mst.
Rukia as his wife and litigation was going on between the two and she was residing with him during the days of occurrence and on the day of occurrence in the dark hours, the deceased accompanied by another person, wanted to take away Mst. Rukia forcibly and the womenfolk got alarmed and they caused injuries to the deceased. The version put forth by the defence was to shun the responsibilities. There was not an iota of evidence that Mst. Rukia was residing in the house of Muhammad Sharif appellant on the day of occurrence. It was suggested to Muhammad Azim that Mst. Rukia was residing with Muhammad Sharif appellant in Mianwali for the purpose of pursuing her case at Mianwali. It was not put to the witness if the parents of Mst. Rukia were alive. It was not further brought on the record as to where her parents lived and what was the distance of their residence from Mianwali. She was not required to appear in Court on every hearing. There was no necessity of her stay with Muhammad Sharif appellant. The three appellants resided in the same courtyard. Two persons could not pick up courage to enter the house of the appellants for the purpose of taking away Mst. Rukia forcibly. The deceased and his unknown companion were not stated to be armed with any weapon. If they had gone there for the purpose of taking away Mst. Rukia forcibly, they would have gone there armed with weapons and could not have returned unsuccessful on account of the resistance put forth by the ladies. Being the resident of that house, the deceased was aware of the ditch and even if it was dark, he would have not fallen into it. Mst.
Rukia or any other lady was not examined in support of the defence plea. We feel little hesitation in rejecting the defence plea as put forth by the appellants. After having carefully scrutinised the evidence, we hold that the three appellants had committed the murder of Muhammad Akbar deceased and they were rightly convicted by the trial Court. As submitted by the learned counsel for the appellants, it wwitnesses had come on roof's top on hearing the noise of the deceased.
Abdullah P. W. Admitted in cross-examination that he did not know as to how quarrel between the three accused and Akbar deceased originated on the day of occurrence as he was attracted to see the occurrence only on the noise raised by Akbar deceased. Since it was not brought out on the record as to how the occurrence originated, we consider it to be a mitigating circumstance for awarding lesser sentence to Muhammad Sharif appellant. The sentence of death of Muhammad Sharif is altered to imprisonment for life. His sentence of fine is, however, maintained. The appeal filed by Muhammad Sharif, Muhammad Anwar and Muhammad Ashraf is dismissed. The benefit of section 382-B, Cr. P. C. Shall be given to the appellants and the period spent by them as under-trial prisoners shall be counted towards their sentence.
' The sentence of death of Muhammad Sharif is not confirmed.
' The revision petition filed by Muhammad Azim complainant for the enhancement of the sentences of Muhammad Anwar and Muhammad Ashraf is dismissed.