' QURBAN SADIQ IKRAM, J.-- Ghulam Ali aged 30 years, Amir All aged 20 years, Salabat aged 70 years and Shaman aged 65 years were convicted by learned Additional Sessions Judge-IV, Sahiwal, vide judgment, dated 30-5-1981, for causing the death of Ghulam and for causing injuries to Jahangir, Mst. Nawab Bibi and Bashir P.Ws. Ghulam Ali was convicted under section 302, P.P.C. And setnenced to death and a fine of Rs,5,000 or in default one year's R.I. For the murder of Ghulam. He was further convicted under section 324, P.P.C. For causing injuries to Jahangir P.W. And sentenced to one year's R.I. And a fine of Rs,200 or in default six months'
R.I. Amir Ali, Salabat and Shaman accused were convicted under section 307, P.P.C. For causing grievous and simple injuries to Ghulam deceased and sentenced to five years' R.I. And a fine of Rs,500 or in default six months' R.I. Shaman accused was further convicted under section 307, P.P.C. For causing injuries to Bashir and sentenced to two years' R.I. And a fine of Rs,500 or in default six months' R.I. He was also convicted under section 325, P.P.C. For causing injuries to Mst. Nawab Bibi and sentenced to two years' R.I. And a fine of Rs,500 or in default six months' R.I. Their co-accused Zohra and Razzaq were acquitted by the same judgment.
The four appellants have come up in appeal to this Court against their convictions and sentences. Ghulam Ali accused was sentenced to death. The proceedings were, therefore, referred to this Court for confirmation of his death sentence. Both these matters will be disposed of together by this judgment.
2. Before commencement of the hearing of the appeal, the appellants were given notice for enhancement of sentence of fine which was accepted by their learned counsel.
3. The prosecution case in brief is that on 19-9-1979, at about 12-00 noon, Muhammad Jahangir P.W.8 was present outside his Kotha alongwith his sister Mst. Nawab Bibi, his brother Bashir P.W. And his cousin Aslam (given up P.W.) looking at the rain water. His father Ghulam deceased was present in his land at a short distance. In the meanwhile, Ghulam Ali, Amir Ali, Salabat accused armed with Sotas, Shaman accused armed with hatchet, Zohra and Razzaq armed with Sotas came there. Ghulam Ali threw a challenge and immediately thereafter gave a Sota blow on the head of Ghulam deceased. Amir Ali gave second Sota blow near the left eye of Ghulam deceased. Shaman accused inflicted two hatchet blows on the person of Ghulam which fell on the back of his hand on fingers. Ghulam fell down whereafter Salabat gave stick blow on his left leg. Muhammad Jahangir P.W. And his companions rushed to save" his father. Bashir P.W.10 and Aslam (given up P.W.) had Dandas in their hands. When they reached near the accused, Shaman accused gave hatchet blow on the clavicle of Bashir P.W. Razzaq accused gave Sota blow on the head of Aslam P.W. Ghulam Ali accused gave three Sota blows on the head, neck and shoulder of Jahangir P.W. While Mst. Nawab Bibi was injured by Zohra accused. Bashir and Aslam P.Ws. Gave Danda blows to the accused in order to save themselves. The alarm attracted Muhammad Ali P.W.11 and Siddique (given up P.W.). At this all the accused ran away from the spot and the deceased Ghulam died as a result of the injuries. The motive was stated to be that on 18-9-1979, at about 4-00 p.m. The cattle of Ghulam Ali accused entered the maize field of Ghulam deceased. The cattle were dirven out from the said field by the deceased and at that time Ghulam All accused had also reached there.
There was exchange of abuses between Ghulam deceased and Ghulam Ali accused, who left the place threatening to take revenge. The complainant Jahangir P.W., leaving the dead body of Ghulam deceased at the spot, went to lodge the report. He met Abdur Rashid S.I. In the way at Bridge Joys at about 1-30 p.m. And made statement Exh.P.B. On the basis of which formal F.I.R. Exh. P.B/1 was recorded on the same day at 2-30 p.m.
' The police undertook investigation. The accused were arrested. Zohra accused on 8-10-1979, got recovered blood-stained Sota P.3 which was taken in possession by the Investigating Officer vide memo. Exh.P.Q.
Shaman accused got recovered blood-stained hatchet P.4, which was taken in possession by the Investigating Officer vide memo. Exh. P.R. On 8-10-1979. Razzaq accused got recovered blood-stained Sota P.5 which was taken in possession by the Investigating Officer vide memo. Exh.P.S. Ghulam Ali accused got recovered blood- stained Sota P.6, which was taken in possession by the Investigating Officer on 8-10-1979 vide memo. Exh.P.T.
Amir Ali accused got recovered blood-stained Sota P.7 vide memo. Exh.P.U. And Salabat accused got recovered blood-stained Sota P.8 vide memo. Exh.P.V. All these memos. Were attested by Muhammad Ali P.W.11 and Siddique (given up P.W.) All these Sotas were found to be stained with human blood vide report of the Chemical Examiner Exh.P.DD. And that of Serologist Exh.P.EE.
4. Dr. Muhammad Siddique P.W.6 conducted post-mortem examination on the dead body of Ghulam deceased at 11-30 a.m. On 29-9-1979. He found ten injuries on his person given in detail as follows:-
(1) A lacerated wound 1" x 1/3" x bone deep, antero-posterior, with an abrasion 11" x 1" around it on top of head on the middle line, 4" above the eyebrows and a contusion 21" x 11" extends backward from the posterior end of wound. The part was swollen 5" x 3" around the injury.
(2) A lacerated wound 1/2" x 1" into bone deep on left cheek below the eye.
(3) A contusion 3" x 1" oblique, on outer 1/3" of right collar bone and upper part of chest. The clavicle bone underneath the injury was fractured.
(4) A contusion mark 3" x 11" on front of right chest 31/2" below the nipple, oblique.
(5) An incised wound 21" x 1/2" x bone deep on back of left hand, oblique and extends into the web between index and middle fingers, oblique in direction.
(6) An incised wound 11" x 1/3" x 1/2" on back of left hand and 3/4" inner to injury No,5 oblique.
(7) An abrasion 21/2" x 1/3" on front of middle of left thigh vertical.
(8) Abrasion front of middle of left leg 21" x 4" vertical.
(9) A swelling 4" x 21/2", with a contusion 21" x 3", on back and inner side of middle of left forearm, oblique. The ulna bone underneath was fractured.
(10) The upper and lower eyelids of right eye were contused.
' Injury No, 1 was found sufficient to cause death in ordinary course of nature. Injuries Nos. 3 and 9 were also found to be grievous in nature.
' He also examined Mst. Zubaida Bibi daughter of Noor on 19-9-1979, at 4-30 p.m. And had found one lacerated wound on the top of her head with swelling around it. She was semi-unconscious and was found vomitting. He also found the pupil reacting to light slightly and sluggishly. On X-Ray, this injury was found to be by blunt weapon and of simple nature.
' He also examined on the same day, at 5-00 p.m. Mst. Nawab Bibi P.W. And found one incised wound on the pelmer surface of her hand and four blunt weapon injuries above the ear, on the right side of head, on the left side of head and middle of right shoulder. These injuries were simple in nature.
' The doctor also examined Bashir P.W. On same day at 5-45 p.m. And found one incised wound pleural cavity deep on the left side of chest and neck. This injury was by sharp-edged weapon and of grievous nature.
' Jahangir P.W. Was also examined by this witness on 20-4-1979. He was found to be having four blunt weapon simple injuries on his person. These injuries were located on the left side of head, on the back of the base of neck, on the middle of right shoulder blade and faint contusion marks on left shoulder joint.
' On 20-9-1979, at 5-15 p.m., he also examined Muhammad Aslam (given up P.W.) who had one lacerated wound on the back of head. This was by blunt weapon and of simple nature.
' On 9-10-1979, this very Medical Officer examined Shaman accused at 3-00 p.m. But found no mark of injury on his person. Razzaq (acquitted accused) was also examined on that date. He was found to be having two healed scars; one on the back of left hand and the other on the back of left side of head. These were by blunt weapon and of simple nature and of 20/21 days' duration. Zohra accused was also examined at the same time.
He had three scar marks on his person which were by blunt weapon, of simple nature and of 20/21 days' duration. Salabat accused was also examined at that time. He had one healed scar on the left side of head. This was by blunt weapon, simple in nature and of 20/21 days' duration. Ghulam Ali accused when examined on the same day, was found to have one healed scar on the left side of upper lip. This was by blunt weapon, simple in nature and of 20/21 days' duration.
' After completion of the investigation, the accused were challaned.
5. During the trial, the prosecution examined twelve witnesses in all. Jahangir P.W.8, son of the deceased, Mst.
Nawab Bibi, daughter of the deceased, Bashir P.W.10 another son of the deceased, and Muhammad Ali P.W.11, a tenant of the deceased, were examined as eye-witnesses. Out of these, Jahangir, Mst. Nawab Bibi and Bashir P.Ws. Were injured. Muhammad Aslam injured P.W. And Mst. Zohra injured P.W. Were given up as unnecessary while Siddique P.W. Was given up as having been won over by the accused. The recoveries were witnessed by Muhammad Ali P.W.11 as given in detail above. Muhammad Siddique another recovery witness was given up as having been won over by the accused. Dr. Muhammad Siddique P.W.6 deposed about the post-mortem examination on the dead body of Ghulam Ali and also about the medico-legal examination of the eye-witnesses and the accused. The details have been given above. The evidence of rest of the wtinesses were of formal nature.
6. The accused when examined under section 342, Cr.P.C. Denied the charge of murder. They all denied the recoveries of the crime weapons at their instance. Ghulam Ali accused pleading the right of self-defence made the following statement:- "The correct version of the occurrence is that on the night preceding the day of occurrence there was torrential rain in our field and as a result of it the land became sloushy on the following morning when I alongwith my father Mir Dad and my brother Salabat went to look after our cattle tethered on our Behak. We found that there was widespread rain all around and the cattle could not sit and stand there. We had to feed our cattle as such we untethered them with the intention to take them to dry place on the bank of the Rajbah nearby. On our way near our Behak the deceased alongwith Aslam, Bashir and Jahangir P.Ws. Intercepted us saying that the vacant land between the Rajbah and our Behak had been ploughed by them because they had to take up the tenancy of that next month and for that purposes they were preparing the land for sowing Kharif crop. We requested them that the cattle would not damage their land and we would try to pass by it on the Pagdandi. This led into exchange of abuses and the deceased alongwith Aslam, Bashir and Jahangir who were all armed with Sota attacked us. The deceased was the first who gave a blow with his Sota to my father Mir Dad hitting him on his forehead. He was given another blow by the deceased on the back of his left arm. I and Salabat co-accused intervened to rescue our father but the deceased and the P.Ws. Mentioned above attacked us and caused injuries to us also. I, my brother Salabat had Soti for goading the cattle and my father Mir Dad had a small hatchet for the purposes of cutting branches of the trees for using the same as pegs for tethering the cattle. We also used our sticks and hatchet in self-defence and caused inujries to the deceased and witnesses. Thereafter, there was a melee and the women-folk of the family also reached the spot in which Mst. Nawab Bibi and Mst.
Zohran also received injuries. My father Mir Dad had received a serious injury as well as I and Salabat were seriously injured. My father Mir Dad was examined at Wanwala Dispensary but we could not be medically examined as the police rounded up us on the day of occurrence at the instance of the complainant party. We were detained at the police station for about three weeks illegally and then our arrest was shown during which injuries have been healed and in this interval evidence was fabricated against us in collusion with the complainant party.
' He produced the medico-legal certificate Exh.D.C. Pertaining to his father Mir Dad and examined Dr. Nasim Ahmad Nasir, Medical Officer, Renala Khurd, D.W.1 to .Prove the said certificate. Mir Dad, father of Ghulam Ali was examined by this Medical Officer on 20-9-1979. He found two blunt weapon simple injuries of 18 hours' duration on his person. One injury was in the middle of forehead and other one was on the back of left upper arm. The other accused did not produce any evidence in defence. They all adopted the statement given by Ghulam Ali, their co-accused.
7. The learned Additional Sessions Judge after completion of the trial came to the conclusion that it was a sudden affair and that it could not be said that the accused Ghulam Ali etc. Acted under premeditated plan. He disbelieved the motive attributed to the accused in this case and concluded that it was a sudden affair and as such, every accused was responsible for his own act during the occurrence. He, therefore, convicted the accused as given in detail above.
8. We have heard the learned counsel for the appellants and the State. The learned counsel for the appellants has not contested the time and place of occurrence. He has also not challenged the presence of the accused and the witnesses at the spot at the time of occurrence. He also admitted that the accused caused injuries to the deceased and the witnesses but pleaded that they did so in the right of their private defence. It was contended by him that the prosecution has suppressed the injuries on the person of Mir Dad father of Ghulam All accused. These injuries were also admitted by Muhammad Ali P.W.11 besides having been duly proved by Dr. Nasim Ahmad Nasir D.W.1. It was, therefore, argued that the occurrence being without premeditation, the accused Ghulam Ali has been wrongly convicted under section 302, P.P.C. It was submitted by him that at the most an offence under section 304(1), P.P.C. Or 304(11), P.P.C. Could be said to have been made out against Ghulam All accused. The learned counsel for the State controverted these arguments and submitted that the prosecution case has been fully proved against all the accused.
9. We have considered the above arguments on behalf of the appellants. There was no previous enmity between the parties of this case. There was also no previous litigation between them. It is in evidence that there was heavy rain on the day of occurrence and the water was flowing in various fields. It is also admitted by the parties that the cattle of Ghulam Ali accused strayed into the field of Ghulam deceased. There is, however, difference in the time of this occurrence between the parties. According to the complainant, the cattle of Ghulam All had strayed into the field of Ghulam deceased a day earlier to the day of occurrence while according to the accused the cattle had not strayed but the cattle were being driven by him and his companions to the vacant land for grazing which was objected to by the deceased and as a result of that there was fight between the parties. We find that excepting the statements of the wtinesses, there is no circumstance to indicate that the cattle had strayed into the field of Ghulam deceased a C day earlier to the day of occurrence. During the inspection of spot, the Investigating Officer did not note any damage to the crop of Ghulam deceased. There is also no evidence to show the presence of any crop in the land where allegedly the cattle of Ghulam Ali accused had strayed. In this view of the matter we are not prepared to believe the prosecution story that the cattle of Ghulam Ali had strayed into the field of Ghulam deceased on 18-9-1979. It, therefore, appears that the occurrence took place on 19-9-1979 when the accused Ghulam All and his companion were taking their cattle outside the village in some vacant land for grazing which was objected to by Ghulam deceased resulting in the present occurrence. The accused, therefore, had not come under some pre-plan or after premeditation but the present occurrence took place all of a sudden. There was, therefore, neither any common intention or common object for committing the present crime by the accused. They are, therefore, individually liable for their respective acts at the time of occurrence. A perusal of the medical evidence would indicate that the accused persons suffered minor injuries on their persons. As against this, the deceased received as many as ten injuries out of which one was fatal and two were of grievous nature. Bashir P.W. Received one grievous sharp-edged weapon injury on the left clavicl bone. The other witnesses also received many injuries on their persons.
Ghulam All accused caused only one injury on the person of the deceased. The rest of the injuries were inflicted on the person of the deceased by other three appellants. In this view of the matter, we find that Ghulam Ali accused was guilty under section 304(1), P.P.C. He is accordingly convicted to ten years' R.I. And a fine of Rs,20,000 or in default 21/2 years' R.I. The entire amount of fine, if recovered, will be paid to the heirs of the deceased. Ghulam Ali accused is further convicted under section 324, P.P.C. And sentenced to one year's R.I.
And a fine of Rs,2,000 or in default six months' R.I. For causing injuries to Jahangir P.W. This amount of fine will be paid to Jahangir P.W. As compensation. Both the sentences of Ghulam Ali accused will run concurrently and he will also be given the benefit of section 382-B, Cr. P. C .
10. Amir Ali, Salabat and Shaman accused caused grievous and simple injuries to Ghulam deceased. They remained in judicial lock-up during the trial from their arrest in September, 1979 till their conviction on 30-5- 1981. Amir and Salabat were allowed bail after their conviction on 16-6-1981 while Shaman was allowed bail after conviction on 15-8-1982. These three accused are, therefore, convicted under section 326, P.P.C. For causing injuries to Ghulam deceased. They are sentenced to imprisonment already undergone by them and a fine of Rs,2,000 each or in default 11 years' R.I. Each. This amount of fine, if recovered, will be paid to the heirs of Ghulam deceased. Shaman accused is convicted under section 326, P.P.C. For causing injuries to Bashir P.W. And is sentenced to imprisonment already undergone by him plus a fine of Rs,5,000 or in default to suffer one year's R.I. He is also convicted under section 325, P.P.C. For causing injuries to Mst. Nawab Bibi and sentenced to imprisonment already undergone by him and a fine of Rs,5,000 or in default one year's R.I. The amount of fine recovered from Shaman will be paid to Bashir and Mst. Nawab Bibi P.Ws. The sentence of death passed upon Ghulam All accused is NOT confirmed.
11. With the above modification in sentence, this appeal fails and is accordingly dismissed.