' Ghulam Rasul (60) son of Muhammad, Ashfaq Ahmad (18) son of Ghulam Rasul, Liaqat (25), Rafaqat (20), Muhammad Azam (35), Muhammad Ansar (17) sons of Walayat Khan, Walayat (75), son of Allah Ditta, Muhammad Shafi (30) son of Lal Khan and Ghulam Rasul (47) son of Gehna, were tried by the learned Additional Sessions Judge, Sheikhupura, under sections 148, 307/149 and 302/149, P.P.C., on the allegations that on 10th June, 1980, at Degarwela, they formed themselves into an unlawful assembly, in the area of village Sombri, with the common object of committing the murder of Muhammad Anwar deceased and for making murderous assault on Lal complainant, Muhammad Anwar and Nazir P.Ws. And in prosecution of the aforesaid common object of the said unlawful assembly actually committed the murder of Muhammad Anwar deceased and made murderous assault on the aforementioned P.Ws. By judgment dated 3-11-1982 Ghulam Rasul son of Muhammad and Ashfaq were convicted under section 304(P.Art-I), P.P.C. And sentenced to ten years R.I. And a fine of Rs, 2,000 each or in default in the payment thereof to undergo further R.I. For one year each. The fine, if recovered, was ordered to be paid to the heirs of the deceased as compensation. The remaining accused were convicted under section 323, P.P.C. And sentenced to R.I. For six months each. Ghulam Rasul son of Muhammad and Ishfaq Ahmad have challenged their conviction and sentence through this appeal.
2. The brief facts of the prosecution case are that on 10-6-1980 at about degarwela, Muhammad Anwar deceased was present near his sugar-cane field when a she-donkey of Ghulam Rasul accused son of Muhammad strayed into the field and damaged the crop. The deceased reprimanded Ashfaq Ahmad accused ( son of aforesaid Ghulam Rasul accused) and asked him to control the she-donkey. About half an hour later, Ghulam Rasul son of Muhammad armed with a hatchet, Ashfaq, Liaqat, Rafaqat, Azam, Ansar, Walayat, Ghulam Rasu son of Gehna and Muhammad Shafi accused armed with Lathis came there. On seeing them the deceased started running towards the north. The accused chased him and surrounded him in the field of one Bahadar. Ghulam Rasul son of Muhammad gave a hatchet blow on the head of the deceased from the wrong side. Rafaqat and Ashfaq gave one blow each to the deceased as a result of which he fell down. Thereafter, Muhammad Shafi accused gave him more blows with his Lathi. Lal Khan, Anwar and Nazir P.Ws. Rushed to the spot and tried to intervene upon which Liaqat, Ghulam Rasul son of Gehna and Azam gave Sota blows to Anwar P.W. Walayat gave a Sota blow to Lal Khan complainant. Nazir P.W. Was injured by Ansar accused. Fazal and Barkat All P.Ws. (not produced) also saw the occurrence. Lal Khan complainant snatched the Sota from Ansar accused and caused injuries to Ghulam Rasul and Walayat accused. Anwar P.W. Also gave Sota blows to them.
Muhammad Anwar deceased was removed to Aziz Bhatti Shaheed Hospital, Gujrat, in injured condition, where he succumbed to his injuries on the same day. After the occurrence Lal Khan complainant went to Police Station, Lala Musa, and reported the occurrence to Amir Akbar, A.S.I., at 8 p.m.
3. After recording the F.I.R., Amir Akbar, A.S.I., prepared the injury-statements of Lal Khan, Muhammad Anwar and Nazir P.Ws and got them medically examined. He prepared the inquest- report Exh. P.R. Of the dead body in Aziz Bhatti Shaheed Hospital, Gujrat. He visited the spot on 11-6- 1980. The appellants and four other accused were arrested on 14-6-1980. On 21-6-1980 Ghulam Rasul and Ashfaq appellants led to the recovery of hatchet (Exh. P.5) and Soti (Exh.P.6), respectively, which were taken into possession vide memos. Exh.P.C. And Exh.P.D., respectively. After the investigation, the accused persons were challaned.
4. On 11th June, 1980. Dr. Muhammad Rashid, Medical Officer, A.B.S. Hospital, Gujrat, conducted the autopsy on the dead body of Muhammad Anwar deceased and found the following injuries on it:-
(1) A lacerated wound 3" x in x bone deep on top of head. It was transverse in direction.
(2) A swelling 3" x 3" on left temporal region.
(3) An abrasion I" x 4" on right elbow joint.
(4) A bruise 4" x 2" on right arm.
(5) An abrasion 2" x 3" in number on right forearm.
(6) A bruise 4" x 2" on right thigh upper portion.
(7) A bruise 4" x 3" on right shoulder blade.
(8) An abrasion 1" x 4" on left shoulder.
' There was a fracture of the frontal bone extending up to the left temporal region. In the opinion of the doctor, death was due to shock and hemorrhage resulting from injuries Nos. 1 and 2 which were severe enough to cause death in the ordinary course of nature.
' On 10th June, 1980 Dr. Riaz Ahmad examined Lal Khan complainant and found a swelling 2" x 2" on dorsal aspect of left hand. He also complained of pain on left thigh.
' On the same day the same doctor examined Nazir P.W. And found seven injuries on his person, caused by a blunt weapon. Injuries Nos. 1, 3, 4'and 6 were kept under observation and rest were simple in nature. All the injuries were caused by blunt weapon.
' On the same day the same doctor examined Muhammad Anwar P.W. And found seven injuries on his person, caused by a blunt weapon. The injuries were kept under observation and had been caused by a blunt weapon.
' On 15th June, 1980 Dr. Iftikhar Ahmad, Medical Officer, Primary Health Centre, Lalamusa examined Walayat accused and found five injuries on his person, simple in nature caused by blunt weapon.
' On the same day the same doctor examined Ghulam Rasul appellant and found seven injuries on his person, simple in nature caused by blunt weapon.
5. In support of its case the prosecution examined three eye-witnesses, namely, Lal Khan, Muhammad Anwar and Nazir. It also relied on the evidence relating to recovery of weapons from the accused persons.
6. The appellants pleaded not guilty to the charge. Ghulam Rasul appellant when asked why this case against him, made the following statement: - "On the day of occurrence, just before evening, I had complained to Anwar deceased about the theft of melons to which there was an altercation and thereafter, I along with Walayat co-accused were taking our cattle to the village, when we were way-laid. Anwar deceased, Anwar P.W. And some other persons while armed with weapons attacked us and I and Walayat accused, with our driving sticks acted in self-defence and caused injuries to the deceased and the P.Ws."
' He tendered a copy of pedigree table Exh.D.E. Muhammad Ashfaq appellant stated that he has been falsely involved being the son of Ghulam Rasul son of Muhammad.
7. After examining the evidence on the record, the learned trial Judge came to the conclusion that there was no premeditation on the part of the accused and the deceased lost his life in a sudden fight between the parties, therefore, each accused would be liable for his individual act. He, therefore, convicted the appellants under section 304(Part-I), P.P.0 and sentenced them as mentioned above.
8. The learned counsel for the appellants contended that no independent witness has been produced by the prosecution, the eye-witnesses are interested and unreliable and the plea of Ghulam Rasul finds support from the facts and the circumstances of the case, therefore, the conviction and sentence of the appellants is unsustainable. The learned State Counsel, on the other hand, submitted that 'the eye-witnesses had absolutely no motive to falsely implicate the appellants in this case and their evidence has been rightly accepted by the Court below.
9. Lal Khan complainant is the uncle of the deceased. Anwar and Nazir P.Ws. Are brothers inter se.
Anwar P.W. Admitted that he had equal relations with the accused and the deceased. The mere relationship of the eye-witnesses with the deceased is not a sufficient ground to discard their evidence. There is nothing on the record to show that the eye-witnesses had no motive to falsely implicate the appellants in this case.
10. The finding of the learned trial Judge that the attack on the complainant party was without premeditation and a result of sudden fight between the parties, has not been challenged either by the State or by the complainant. Having gone through the record I find that this finding has the support of evidence. The facts and the circumstances indicate that the occurrence took place all of a sudden over the damage done to the sugar-cane crop by the she-donkey of Ghulam Rasul appellant in which both the parties suffered injuries at the hands of their adversary. In a situation like this the question as to which party initiated the attack is wholly immaterial. The facts available on the file however, indicate that the appellants had no intention to kill the deceased. Ghulam Rasul appellant used the hatchet from the wrong side and did not repeat the blow. Ashfaq appellant also gave only one Sota blow to the deceased. In the circumstances, the intention to kill cannot be inferred. However, the appellants can safely be burdened with the knowledge that Sota blow on the head was likely to cause the death of the deceased, therefore, the offence committed by them falls under section 304 (Part II), P.P.C. Accordingly, the conviction of Ghulam Rasul and Ashfaq appellants under section 304 (Part I), P.P.C. Is altered to section 304 (Part II), P.P.C. Keeping in view all the circumstances of the case their sentence is reduced to R.I. For seven years each. The fine imposed on them by the trial Court is maintained. In default of its payment they will undergo further R.I. For one year each. They shall be given the benefit of section 382-B, Cr.P.C. The fine, if recovered, shall be paid to the legal heirs of the deceased as compensation. The appeal stands disposed of accordingly.