' Mahboob, son of Muhammad Khan, aged 35, armed with Sota, his uncle Mehr Khan, son of Muzaffar Khan, aged 40, also armed with Sota (since dead in the Jail) and his sister Mst. Ghulam Aisha, daughter of Muhammad Khan, aged 16, also armed with Sota, were tried by the Sessions Judge, Khushab, who vide his judgment, dated 25-11-1982 convicted and sentenced them as follows: Both Mahboob and Mehr Khan were convicted under section 304, Part II, read with section 34, P.P.C. For the murder of Muhammad Nawaz, aged 25 years, and each of them was sentenced to seven years' rigorous imprisonment plus fine of Rs,4,000 or in default to undergo two years' rigorous imprisonment with the direction that if the fine was realized from them, out of the same Rs,6,000 should be paid as compensation to the heirs of the deceased. Both were also convicted under section 323/34, P.P.C. For causing simple injuries to Ghulam Husain (P.W.8) and each of them was sentenced till the rising of Court plus fine of Rs,1,000 or in default to undergo six months' rigorous imprisonment each with the direction that if the fine was realized from them, out of the same Rs,1,500 should be paid as compensation to Ghulam Husain P.W. Mst. Ghulam Aisha was convicted under section 323, P.P.C. Only for causing simple injuries to Abdul Rahman (P.W.9) and was sentenced uptill the rising of the Court. Mst. Ghulam Aisha has not filed any appeal and she is not before me. Mehr Khan has died in the Jail and, therefore, his appeal has become infructuous and disposed of as such. There remains in the field only Mahboob convict whose appeal is being disposed of by this judgment alongwith Cr.R.No, 43 of 1983.
2. The occurrence took place at Digarwela on 19-9-1981 within the Dera of Hafeez Tiwana Dakhli Mitha Tiwana at a distance of three miles from Police Station, Mitha Tiwana, District Khushab. F.I.R.
(Exh.P.F.) was lodged by Muhammad Ramzan (P.W.7), father of the deceased, at 8.35 a.m. On the following day i,e, 20-9-1981 and it was recorded by Iftikhar Ahmad, H.C. (P.W.3).
3. The motive for crime as stated in the F.I.R. Is a dispute between the parties on closing of the water in the Khala.
4. In the F.I.R. The occurrence is stated to have taken place in the following manner. On the fateful day the deceased alongwith his father and two brothers namely, Muhammad Ramzan (P.W.7) father, Ghulam Husain (P.W.8) and Abdul Rahman (P.W.9), both brothers. Was irrigating his filed.
Their turn of water was over and since the water available in the area was not drinkable, Muhammad Ramzan P.W. Told the deceased to block the canal water in the Khala so that they could take some for drinking purposes. Thereupon the deceased went to close the Khala so that some canal water accumulated there which they could take for drinking purposes. In the meantime the accused-party arrived there armed with Sotas and attacked the deceased and his brothers Ghulam Husain and Abdul Rahman P.Ws. According to the prosecution, Mahboob appellant and Mehr Khan caused injuries with their respective Sotas to the deceased as well as to Ghulam Husain P.W. And Mst. Ghulam Aisha caused injuries to Abdul Rahman P.W. The case registered against them firstly, was under section 307, P.P.C. Read with section 34, P.P.C. But on the death of the deceased subsequently it was altered to section 302, P.P.C.
5. The prosecution has produced three eye-witnesses of the occurrence namely, Muhammad Ramzan (P.W.7) father of the deceased, Ghulam Hussain (P.W.8) and Abdul Rahman (P.W.9), both brothers of the deceased. Mahboob appellant, Mehr Khan and Mst. Ghulam Aisha were arrested on 20-9-1981 by Bashir Ahmad A.S.I. (P.W.10). Sotas were recovered from them but since they were not stained with blood, these recoveries were of no consequence.
6. I have already pointed out that Mehr Khan has since died in the Jail and, therefore, his appeal has become infructuous. Mst. Ghulam Aisha did not file any appeal. Hence there is only Mahboob appellant in the field. In his statement before the trial Court he admitted that he caused the death of the deceased. His version of the occurrence is as follows:-- "At the time of occurrence I was irrigating the field of my landlord Allah Dad Tiwana. I was his servant. The time of occurrence was the Wari of my landlord. I noticed that water in the Khal has lessened. I looked up the Khal. I found the deceased obstructing the flow of water through the Khal.
He was closing the Khal with the Kassi. I inquired of the deceased as to why he has done this mischief. The deceased said he has done a good thing. I requested the deceased not to obstruct the flow of water. The deceased did not agree. Instead he opened his Dhoti and laid bare his sexual organ and said to me 'if you can cause harm then cause harm to my private part'. On this I picked up the Kassi of the deceased which was lying nearby and hit the deceased with it. Ghulam Aisha and Mehr Ali accused were not at all present at the spot at that time. Abdul Rahman and other relations now P.Ws. Were also not present. Mst. Ghulam Aisha co-accused is my sister and Mehr Khan co-accused is my maternal-uncle. Both these co-accused reside at the Dera of Falak Sher Awan in Dera Awanawala three miles away from the spot. We were not tenants of Allah Dad."
' Thus, according to him, he caused injuries to the deceased under grave provocation and having lost his temper. He had picked up the Kassi lying nearby and with its blunt side had caused injuries to the deceased.
7. Dr. Asghar Nawaz (P.W.1) medically examined the deceased while he was alive on 19-9-1981 at 5- 30 p.m. And found on his person a contused wound on the interior top of the skull and another contused wound on the left top of the skull. The patient was unconscious and was vomitting blood.
Both the injuries were kept under observation as they were dangerous to life. These had been caused by a blunt weapon.
' On the same day he medically examined Ghulam Husain P.W. At 6-00 p.m. And found on his person a contusion mark on the left ulna bone and another contusion mark on the middle part of right arm. These injuries were simple and caused by a blunt weapon.
' On the same day he medically examined Abdul Rahman P.W. At 6-15 p.m. And found on his person a contusion mark on the back of left arm and an abrasion on the upper back- part of left shoulder joint. These injuries were simple and had been caused by a blunt weapon.
' On the death of the deceased Dr. Muhammad Riaz Ali (P.W.6) conducted the post-mortem examination at 6-40 p.m. On 21-9-1981 and found. On his person the same injuries except that they were stitched. Death in his opinion was due to compression of brain and shock as a result of the head injuries which were sufficient to cause death in the ordinary course of nature as these were fatal. Both the injuries had been caused with blunt weapon and were ante-mortem.
8. I have heard learned counsel for the appellant and also learned Assistant Advocate-General and perused the record. Learned counsel states that Mahboob appellant has admitted the occurrence that he had caused injuries to the deceased which led to his death. In other words, learned counsel does not challenge the conviction of Mahboob appellant under section 304, Part II, P.P.C. He is only raising the question as to, in the circumstances of the case, what sentence should be awarded to him.
9. There is also Criminal Revision No,43 of 1983 filed in this case by Muhammad Ramzan complainant as against the members of the accused party. In this criminal revision it is prayed that Mahboob appellant and Mehr Khan should have been convicted under section 302/34, P.P.C.
And sentenced to death and that Mst. Ghulam Aisha should also have been convicted under the aforesaid section. Thus the criminal revision is against acquittal of all the members of the accused party from charges under sections 302/34 and 307/34, P.P.C. Learned counsel for the complainant has not appeared and I am under no obligation to hear him as it is only a criminal revision. In my view, in the light of the circumstances of the case, there is no substance, in this criminal revision which is accordingly dismissed in limine. So far as the question of awarding of sentence to Mahboob appellant is concerned, learned counsel places reliance on Said v. The State 1968 P Cr. L J. 1836; Bahar Khan v. The State 1972 P Cr. L J 411; Ali Muhammad v. The State PL 1978 Kar. 644 and Muhammad Siddique v. The State 1981 PCr.LJ 1166. Unfortunately none of these authorities could be made applicable to the facts and circumstances of the present case. The trouble with authorities and citations in criminal cases is that each and every case is governed by its own facts and circumstances and it is not easy to apply a principle laid down on the basis of particular facts and circumstances of a case on a case in which the facts and circumstances are different. In the instant case, the deceased had two head injuries and both these injuries were caused with blunt weapon and they proved fatal. The prosecution version is that these head injuries were attributed to the appellant and his co-accused who has died in the jail. Section 34, P.P.C. Has also been made applicable to the instant case. Both these injuries were individually fatal. In the circumstances it is irrelevant to argue that the appellant only caused one injury to the deceased and did not repeat it thereafter. The second point which requires consideration is the plea of learned counsel to the effect that the appellant had acted under grave and sudden provocation. But this plea seems to be negatived by the statement made by the appellant before the trial Court. He has stated in his statement before the trial Court that his sister and his maternal-uncle were not present at the time of the occurrence and that he alone was present. He has further stated that he had picked up a Kassi on the grave provocation of the deceased when he raised his Dhoti and made his private parts bare and told him that he could cut the water on his private parts. Had he admitted that this performance was done by the deceased while the sister of the appellant was present, the facts and circumstances of the case would have been different and I would have regarded that he would have been genuinely, gravely and suddenly provoked. But this is not so according to his own contention. If he was alone at that time and the deceased had acted in that manner, then the appellant must also be burdened not only with the first head injury on the deceased but also with the second head injury on the deceased as according to the medical evidence there were two head injuries which were individually fatal in the instant case. Be that as it may, in my view the sentence awarded to the appellant under section 304, Part 11, P.P.C. In the instant case is quite proper and is accordingly maintained in the peculiar circumstances of the instant case. The result is that the appeal of Mahboob appellant is dismissed but the jail authorities are hereby directed to grant him the benefit of the provisions of section 382-B of the Code of Criminal Procedure at the time of computation of the sentence of imprisonment awarded to him. With this observation the appeal is dismissed.
' In the light of what I have discussed in paragraph No,9 above of the judgment, I do not find any substance in Cr.R.No,43 of 1983 against acquittal of the accused party from charges under sections 302/34 and 307/34, P.P.C. Which is also dismissed in limine. Learned counsel for Muhammad Ramzan complainant did not appear on 13-6-1984 but he did appear on 17-6-1984. Any way, I have told him that the aforesaid criminal revision, in the instant case, has been dismissed in limine.
Appeal and .