' Appellants Nazra (30), Asiam (20), real brothers and Inayat (21), their first cousin and brother-in- law of Nazra (sister of Inayat is married to Nazra) were tried by Sessions Judge, Gujrat, alongwith Gamma, uncle of 1" Nazra and Aslam, and Manzur, for having committed the murder of Gulzar Ahmad and for having caused injuries to Abdul Jabbar and Muhammad Iqbal, P. Ws. The learned Sessions Judge, vide order dated 5th March, 1979, convicted appellant Nazra under section 302, P. P.
C. And sentenced him to imprisonment for life and a fine of Rs, 1,000, in default to suffer R. I. For one year. The fine, on recovery, has been directed to be paid as compensation to the heirs of the deceased. Rest of the accused were acquitted of the murder charge.
' Nazra appellant has also been convicted under section 325/34, P. P. C. And sentenced to undergo three years' R. I. He has also been sentenced to six months, R. I. Under section 323/34, P. P. C. All the sentences have been ordered to run concurrently.
' Appellants Aslam and Inayat have been convicted under section 325/ 34, P. P. C. And sentenced to three years' R. I. Both of them have also been convicted under section 323/34, P. P. C. And sentenced to undergo six months' R. I. Both the sentences have been ordered to run concurrently.
' The other two co-accused of the appellants have been acquitted of all the charges.
2. The convicts have filed appeal. Abdul Jabbar, complainant, has filed Criminal Revision No, 411 of 1979, praying enhancement of the sentence of Nazra from life imprisonment to death under section 302, P. P. C. And for enhancement of sentences of all the convicts awarded under section 325/34 and 323/34, P. P. C. There is a prayer for retrial of all other accused acquitted of charge under section 302, P. P. C.
' The revision petition has not been admitted to a regular hearing. It has been directed to be heard alongwith Cr. A. No, 429/79. Since both the matters arise from the same order, they are being disposed of by one order. . The occurrence took place on 4th August, 1978 at 8 a. m. In the field of Abdul Jabbar, in the area of village Chakori, situated at a distance of seven miles from Qadirabad Police Station. Formal F. I. R.
(Exh. P. M.11) was recorded at the police station at 5.30 p. m. On the same day by Muhammad Rafiq, A. S.-I. (P. W. 12), on receipt of statement (Exh. P. M.) of Abdul Jabber (P. W. 9), recorded by Muhammad Yousaf, A. S.-I. (P. W. 6), at 4.45 p. m, in Civil Hospital, Phalia. The statement of Abdul Jabbar was recorded by the A. S.-I. After obtaining opinion (Exh. r. G./), on application (Exh. P. G.) from the doctor, that the injured was to make a statement. A case was registered under section 308/147/14P. C. Gulzar Ahmad died on 16th August, 1978 at 4.30 a. In. In the hospital, whereafter the offence was changed to under section 302/149/148 P. C.
4. The complainant's case before the police was that on the day of occurrence he was grazing his cattle along with his brother Gulzar Ahmad (deceased) and Muhammad Iqbal P. W. In the beta. At 8 a. m. The appellants, who were armed with sotas, also arrived in the bela for grazing their cattle.
When his brother stopped them, they flared up. Abuses were exchanged. Hearing the noise, Gamma and Manzur (acquitted accused) who were), present nearby on a tube-well, also came there raising lalkara that a lesson will be taught to him for stopping grazing of cattle. Nazra gave a sota blow on the right and back side of head of deceased, Inayat struck a sota blow, which injured the thumb of right hand of deceased. Sota blow given by Manzur struck on the right thigh of the deceased. When the complainant ad Muhammad Iqbal P. W. Intervened, the complainant was caught by Gamman and Muhammad Iqbal P. W. Was caught by Aslam, whereafter Nazra and Manzur gave injures to the complainant on his back, shoulder, right thigh and right cheek, while Inayat gave sota blows to Muhammad Iqbal on his right hand and back. Abdul Ghafoor (P. W. 11) and Muhammad Bashir (given up P. W.) were also attracted to the spot and witnessed the occurrence. The complainant has stated that thereafter they were shifted to the hospital, where he made statement (Exh. P. M). To the A. S.-1.
5. All the accused were arrested on 18th August, 1978. During investigation, lathis (P. 3, P. 4 and P..5) were got recovered by appellants Nazra, Aslam and Inayat, respectively, which were taken into possession vide memos. Exhs. P. N., P.
0. And P. Q, respectively. The lathis were not blood-stained.
6. The medical examination of the deceased in his life time and of other witnesses was conducted by Dr. Rashid Ahmad (P. W. 5), on 14th August, 1978, at 4 p. m.
' The deceased was admitted in the hospital in an unconscious state on 14th August, 1978. He died on 16th August, 1978 at 4.30 a. m. In the same state, without making statement.
' The same doctor had performed the post-mortem examination on.' the dead body of Gulzar Ahmad deceased on 16th August, 1978.
7. At the trial the prosecution in all produced 13 witnesses. Dr. Rashid Ahmad, who had medically examined Gulzar Ahmad in his life time had found swelling on his left parietal region and on the top of head. He also noted two contusions, one on the right thumb and the other on the right thigh.
Swelling of left parietal region was kept under observation. The rest of the injuries were declared simple.
' The same injuries were noted at the time of post-mortem examination of Gulzar Ahmad (deceased). On opening head, a big black coloured haematoma and fracture of skill underneath was observed. There were black clots of blood between the brain membrane and vaults of the skull. According to his opinion, the deceased died as a result of injury No, 1, which has been described as under :- "Swelling, 5" x 5" left parietal and temporal region."
He has also observed that other injuries have hastened the death.
8. Muhammad Iqbal P. W. Was found to have suffered three contusions, one on the ring-finger of left hand, second on the back of lower of chest and the third on the left side of chest. Palm of left hand was swollen.
' Except injury on the hand, others were declared simple. Metacarpal bone opposite to upper little finger was found fractured. M such injury on the left hand was declared grievous.
' Abdul Jabbar P. W. Was found to have suffered two contusions, one on the back of chest, left side of lower part and the other on right loin. Two swellings, one below right eye and the other on the right thigh were observed. An abrasion on the top of left shoulder, was also observed. All the injuries were declared simple.
9. During investigation motive unearthed for the occurrence was that Nazra appellant had slapped Nisar (P. W. 3), real brother of Gulzar Ahmad, the buffaloes being grazed by Nisar having damaged his crop. Idrees P. W. Had rescued him and when Nisar informed Gulzar deceased, the y went to protest to Nazra, but Nazra said that he will do the samp, whereupon Gulzar told him not to come to graze cattle in the bela Nazra retorted that he would come and he will teach him a lesson if he is prevented fromdoing the same. Niser P. W.-3, Ahmed Kukara (P. W. 4) and Muhammad Idrees (P. W.
8) have made statements regarding motive. The learned trial Judge has disbelieved the evidence of motive. The learned trial Court while recording reasons for discarding the evidence of motive.
Has referred to discrepancies in the statements of the witnesses and the improvements made by them. Reference has also been made to the statement of Ahmad Kukara P. W. That father of Inayat appellant had appeared as a witness in a murder case against them, as a result of which they had to incur expenditure and had to obtain loan. Previous conduct of Idrees P. W. Of having abducted a woman has also been noted.
10. I have gone through the reasons advanced by the learned trial Court and I find force in them. It is also important to note that the complainant had not mentioned anything regarding the motive while lodging the F. I. R. At the trial also neither the complainant nor the other two eye-witnesses have deposed anything regarding this motive. This fact by itself diminishes the evidentiary value of the statements of P. W. 3, P. W. 4 and P. W.
8. In the circumstances, the learned trial Court has rightly discarded the evidence of motive.
' The evidence of recoveries of sotas has also not been relied upon by the trial Court. Sotas were not blood-stained. They were of ordinary type. Reasoning advanced for not taking the evidence of recoveries of sotas into consideration is not unsound.
11. The case of the prosecution rests on the eye-witness account and the medical evidence. Out of the three eye-witnesses, two are injured. Learned counsel for the appellants did not challenge the presence of the two injured P. Ws. At the time of occurrence. He has, however, contended that the presence of Abdul Ghafoor (P. W. 11), was doubtful.
' Ghafoor P. W. Is maternal uncle of Abdul Jabbar complainant and the deceased. This relationship has been admitted by P. W. 9, He is a shopkeeper. His claim that he had gone to the place of occurrence to pick up fuelwood could not be substantiated by him. He has admitted in cross- examination that he had not mentioned the fact of having gone to the sir for collecting fuel food in his statement under section 161, Cr. P. C His further admission that he had not taken any cloth or string to pack or make bundle of fuelwood makes the credentials of his going to the spot for picking up fuel wood doubtful. He is 50 years of age. Had he been on the spot, he would have played some positive role in the occurrence as the occurrence had started because of stopping of grazing f cattle by deceased and because of abuses exchanged thereafter, I feel dined to agree with the learned counsel for the appellants that this tens was not present on the spot. The other important factor is that ad he been on the spot, he would have gone to the police station for reporting the matter instead of waiting for the police in the hospital for three hours The doctor's statement, is that the injured had arrived in the hospital at 1.15 p. m. While the statement of the complainant was recorded by the A. S.-I at 4-45 p. m.
12. Learned counsel for the appellants while admitting the presence of the injured P. Ws. Has also not denied the participation in the occurrence of Nazra and Inayat appellants. His whole stress is that the case of Nazra appellant is covered by Exception 4 of section 300, P. P. C.
' With regard to appellant Aslam, he has contended that no allegation has been levelled that he had given any injury either to the deceased or to the P. Ws. Or even had made any attempt.
13. I have examined the contentions of the learned counsel for the appellants with reference to the evidence. It is prosecution's own case that the appellants had gone to the place of occurrence to graze their cattle and were holding sotas as such. Obviously no malice can be imputed to the appellants having been in possession of sotas. It is common knowledge that persons grazing cattle do hold sota. The conduct of the appellants thus of holding -sotas cannot lend any support to the prosecution for imputing any intention to the appellants. It is on record that the deceased had not only asked the appellants not to graze the cattle in the bela but also had pushed their cattle out of the bela. P. W. 9 has stated that he had done by inflicting sotas to the cattle of the accused. It is also in the statement of P. W. 10 that after the deceased had pushed away the cattle of the appellants, they had brought them again. Both the injured eye-witnesses have made no secret of the fact that the deceased and the appellants had exchanged abuses also P. W. 9 has also stated in cross-examination that before the occurrence he and his brother had not consulted each other that if the accused bring the cattle to graze in the bela they will stop them. He has also stated that prior to this incident they had no enmity with the accused.
' Ghulam Hussain, patwari (P. W. 2) has given the names of nine shareholders of the land where the occurrence took place, though the names of none of the appellants appeared there, but he has also stated that the place of occurrence was uncultivated land and people used to graze cattle there. The patwari could not say whether prior to consolidation which took place on 30th January, 1977, the land belonged to the appellants or not. The statement of the patwari that the land was uncultivated and people used to graze their cattle, is indicative of the fact that the land was used for grazing the cattle by general public and so it cannot be inferred that the appellants had committed any trespass.
14 In the situation enumerated above, particularly the fact that the occurrence had started while the deceased had pushed out the cattle of the appellants by giving them danda blows and when the appellants brought their cattle again for grazing, the deceased again prevented them and the abuses were also exchanged, the contention raised by the learned counsel for the appellants that it was a case of sudden occurrence, seems well founded. The case of appellant Nazra is thus covered by Exception 4 of section 300, P. P. C. Which reads as follows :- Exception IV. "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. Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault."
' It is obvious that Nazra appellant had neither taken undue advantage nor acted in a cruel or unusual manner.
The conviction under section 302, P. P. C. Of Nazra appellant, therefore, is set aside. He is convicted under section 304, Part I, P. P. C. And sentenced to undergo seven years' R.I. Keeping in view the fact that Gulzar Ahmad deceased was a young man of 20 years and had died as a result of the injury inflicted by the appellant Nazra, be is sentenced to a fine of Rs, 5,000 in default whereof to suffer further R. I. For three years. The whole of the fine, on recovery, shall be paid as compensation to the heirs of the deceased. The learned Collector, Gujrat shall be directed to take steps for recovery of the fine. As the participation and the role played by Nazra appellant has been believed, his convictions under section 325/34 and 323/34 are maintained. However, in view of the fact that the injury suffered by Muhammad Iqbal P. W. Was on little finger and there is no evidence that the finger had gone disfigured, his sentence under section 325/ 34, P. P. C. Is reduced to one year' R. I.
The sentence under sect ion 323/ 34, P. P. C. Is maintained. All the sentences shall run concurrently.
15. Regarding Inayat appellant, learned counsel for the appellants has contended that he had remained in jail during trial for about seven months and has also undergone more than two months' R. I. After conviction and as such the sentence already undergone would meet the ends of justice.
I find substance in the contention of the learned counsel and particularly keeping in view the fact that the injury for which he has been sentenced to three years' R. I. Under section 325/34, P. P. C.
Was only on the left little finger of Muhammad Iqbal P. W. Which is not vital part and there is no evidence that there was any disfiguration of the finger. He has also been convicted under section 323/34, P. P. C. And sentenced to six months R. I. His convictions on both the counts are maintained but the sentence is reduced to that already undergone. He is already on bail. He shall be discharged of his liabilities of bail bond.
16. The argument of the learned counsel with regard to Aslam appellant of having not been imputed any injury either to the deceased or the witnesses is also weighty. He was armed with a sota. Had he intended to take part in the occurrence, he would have merely caught hold of Muhammad lqbal P. W. So that anyone else may cause simple injury. He could have caused injuries himself. The role ascribed to him seems to be exaggerated. His mere presence at the spot cannot be equated with participation in the occurrence. In the circumstances, it seems doubful whethe he participated in the occurrence in any effective manner. He is given the benefit of doubt and is acquitted, He is already on bail. His surety and bail bond stand discharged.
17. The prayer of the learned counsel for the complainant for enhancement of sentence of Nazra appellant stands rejected in view of the fact that conviction of Nazra appellant under section 302, P. P. C. Has been set aside. The learned counsel has not laid much stress for retrial of the accused acquitted of the charge of murder. Even if that be so, the conclusions arrived at regarding the offence having been committed show that there will be no use for directin& retrial. The prayer for enhancement of sentence of Aslam appellant loses its force in view of the fact that his participation in the occurrence has been found to be doubtful. The prayer for enhancement of sentence of Inayat appellant has not been substantiated. The injury for which he has been convicted under section 325/34, P. P. C. Was only on little finger and there is no evidence that there was any disfiguration of the same.
18. For the reasons enumerated above, no case for interference by way of exercise of revisional jurisdiction has been made out. The revision petition stands dismissed.