Shameem Hussain Kadri, J.--Muhammad Bakhsh, aged 70 years, and his son, Allahyar, aged 25 years, were tried by the learned Sessions Judge, Multan, for the murder of one Munshi Faiz Bakhsh.
The former was convicted under section 302/109, P. P. C-, while the latter under section 302, P. P. C.
Both of them were sentenced to transportation for life on 31st August 1967. They have filed two separate appeals through jail (Criminal Appeals No. 718 of 1967 and No. 719 of 1967, both of which will be disposed of by this judgment.
2. The occurrence took place at Chah Berwala, mauza Kurai Baloch, on the 7th of July 1966, at 10-30 a.m. The matter was reported by Qasam (P. W. 9) vide First Information Report Exh. P. A. which was recorded by Sultan Ahmad, Assistant Sub- Inspector of Police (P. W. 13) the same day at 5 p. m. at Police Station Kabirwala, fourteen miles away from the spot.
3. Briefly, the prosecution story as given in the first information report is as follows :--Ghulam Muhammad (P. W. 8) was a tenant of Shabir Hussain Gardezi (P. W. 6) at Chah Berwala, whose tenancy was terminated after a year. As Ghulam Muhammad, aforementioned, was shifting to Chah Wahidad with his family and was taking his cattle also along with him, both the accused appellants, it is alleged, met him on the way and snatched a young buffalo from him, since they claimed that their wages were not paid by him. Ghulam Muhammad complained to Munshi Faiz Bakhsh deceased about this incident two or three days thereafter. The latter asked the appellants to return the buffalo to Ghulam Muhammad. They did not agree to his suggestion, instead, abused him. He thereupon went away.
4. On the day of occurrence, about one and a half pehr after sunrise, the appellants were working under a pipal tree in front of their house when Munshi Faiz Bakhsh again approached them for the return of the buffalo. He specifically told them that this time he had come at the instance of Shabir Hussain Gardezi, the landlord. Abuses were again exchanged between Muhammad Bakhsh appellant and the deceased. It is alleged that appellant Muhammad Bakhsh caught hold of him from the neck and exhorted his son, appellant Allahyar, to attack the deceased. Allahyar appellant picked up Seru (Exh. P. 2), which was lying nearby, and struck it on the head of Faiz Bakhsh deceased who fell down unconscious and was laid on the charpoy by eye-witnesses Qasam (P. W.
9), Allah Bakhsh (P. W. 10), who are brothers, Jindwadda (P. W. 11), and Muhammad Shah (P. W. 12).
Faiz Bakhsh was taken to his house where he died at about peshiwela. Qasam went to the police station and lodged the report.
5. Appellant Allahyar, on 7th of July 1966, led to the recovery of Seru (P. W. 2) which was taken possession of by Sultan Ahmad, Assistant Sub-Inspector of Police (P. W. 13) vide Memo. Exh. P. D. in the presence of Najmul Hassan (P. W. 7) and one Fazal Karim who was not produced at the trial. His Lutigi Exh. P. 1, was found to be blood-stained and was also taken into possession vide Memo. Exh. P.
C. the same day and the memo, was attested by the same witnesses. The report of the Chemical Examiner (Exh. P. T), and of the Serologist (Exh. P. S.) showed positive result that Seru (Exh. P. 2) and Lungi (Exh. P. 1) were stained with human blood.
6. Doctor Muhammad Ikram Qureshi, Medical Officer, Khanewal, conducted the post-mortem examination on the dead body of Faiz Bakhsh deceased on 8th of July 1966 at 10 a.m. He found a contused wound, 3" x J" x bone deep on the right side of his head with fracture of the temporal bone underneath it. He also examined the accused appellant Allahyar the same day at 11-30 a.m. and found the following injuries on his person:--
(1) A contused wound on the frontal part of the head, 3" above the right eye-brow.
(2) A swelling of the right ring finger with fracture of the phalanx.
(3) A contusion on the upper part of the back, both right and left side.
Injury No. 2 of Allahyar was found to be grievous, while the rest were simple. Injuries on the person of the deceased as well as that of Allahyar were found to have been caused with blunt weapon.
The injury on the person of the deceased caused intra cranial haemorrhage and fracture of the temporal bone which was sufficient in the ordinary course of nature to cause death.
7. Muhammad Bakhsh appellant denied his guilt and alleged false implication at the hands of Najmul Hassan (P. W. 7). He, however, stated that the buffalo was not seized from Ghulam Muhammad P. W. In fact, on the intervention of Najmul Hassan P. W. the young buffalo was taken from Ghulam Muhammad. Najmul Hassan told the accused that the buffalo should be re turned only when Ghulam Muhammad had paid off their wages. Faiz Bakhsh deceased did not ask the accused to return the buffalo.
8. Allahyar appellant stated at the trial that he approached Najmul Hassan P. W. for the payment of his wages by Ghulam Muhammad. Najmul Hassan suggested that he should keep the young buffalo of Ghulam Muhammad which he did. Twenty days later, Faiz Bakhsh came and told him that Mian Shabir Hussain Gardezi had asked him to get the young buffalo returned to Ghulam Muhammad. The accused demanded his wages. Faiz Bakhsh tried to untie the young buffalo to which he resisted .... Faiz Bakhsh deceased attacked him with a stick and so did Allah Bakhsh P. W.
In self-defence he caused injuries to the deceased.
9. Presence at the spot of the two eye-witnesses, namely, Qasam and Allah Bakhsh, P. Ws. 9 and 10, respectively, has been admitted by Allahyar appellant. The presence of Muhammad Shah (P. W. 12), also cannot be doubted, as he was cutting fodder in the nearby garden of Shabir Hussain Gerdezi. Jindwada (P. W. 11) had come to the accused for repair of a girder of his house which had broken. He admitted that he was a tenant of Najmul Hassan P. W. at the time of the incident.
10. After perusal of the evidence, we are of the view of that appellant Muhammad Bakhsh has been implicated in the crime merely on account of his relationship with appellant Allahyar, who is responsible for the fatal blow to the deceased. Muhammad Bakhsh appellant is a senile old man of 70 years and it can hardly be believed that he would muster courage to catch hold of the deceased, who has been described by Dr. Muhammad Ikram Qureshi (P. W. 1) as an able-bodied young man of 30/35 years. In order to rope him in, lalkara has also been attributed to him for which he has been convicted by the learned Sessions Judge. Mostly, in this part of the country, lalkara is attributed to persons in order to implicate them in the crime. It is unfor tunate that this innocent man has been in jail for no fault of bis for the last about 4 or 5 years. We have already passed order of his release. His appeal, therefore, succeeds and he is acquitted.
11. So far as appellant Allahyar is concerned, he has admitted to have caused a single injury to Faiz Bakhsh deceased. He has, however, pleaded self-defence. There are three injuries on his person; the one on his little finger is grievous, while the other two are simple. He did not lead any evidence in defence. From the prosecution evidence it clearly transpires that on account of untethering of the buffalo by Faiz Bakhsh in order to restore it to Ghulam Muhammad under orders of his landlord, Allahyar put up resistance and in so doing caused him a blow on his head by a Seru which was lying nearby. Being a carpenter, he was perhaps preparing a cot at that time. This appellant, however, alleged that Faiz Bakhsh and Allah Bakhsh P. W. both had caused him injuries. We are of the view that the plea of self-defence taken up by Allahyar appellant is wholly untenable. If two persons had attacked him, as he has tried to make us believe he would have received more severe injuries. The prosecution story seems to be the natural consequence as to what had happened at the spot.
12. The next question for consideration is as to what offence the appellant has committed.
Obviously, there was exchange of hot words preceding the untethering of the buffalo by Faiz Bakhsh deceased which the appellant admits to have resisted, for Ghulam Muhammad P. W. owed him his wages. The insistence of the deceased to take away the buffalo led the appellant to cause him an injury which proved fatal. His offence therefore, falls within the purview of section 304, Part II, P. P. C. We are of the view that the appellant can be safely posted at least with the knowledge that such an injury on the vital part of the deceased's body would result in his death. However, as he has been in Jail since 1966, for more than four years now, we feel that the sentence already undergone by him will meet the ends of justice in his case. With this modification, bis appeal fails and we .