1. ' GHULAM MUJADDID MIRZA, J.--Muhammad Akram and Sajwara, sons of Muhammad Ali, and their uncle Fateh Muhammad were tried by the Additional Sessions Judge, Sahiwal for the murder of Nazir Ahmad. The trial Judge by judgment, dated 8-12-1980 convicted all of them. He sentenced Fateh Muhammad to death and the two brothers to imprisonment for life. Fateh Muhammad was fined Rs, 5,000 while the latter two Rs, 1,000 each.
2. ' The convicts have filed appeal against their respective conviction and sentences. Reference for confirmation of the death sentence is also before us. Both the matters are being decided together.
3. ' On 21-5-1977, at 3-30 p.m., Muhammad Ismail son of Khan, Bhatti Pawali, resident of Kot Rai Mustafa Lai Bala lodged report (Exh. P.Q) at Police Station Chuchak with regard to the attack on Nazir which took place at 9-00 a.m. In Killa No,24 of Square No,4. The report was taken down by Nazir Ahmad S.I. Nazir Ahmad was attacked in the aforesaid field by the three appellants, who according to Ismail were armed with blunt, weapons.
4. ' Motive for the attack was that two days before the occurrence Akram alongwith his buffaloes trespassed through the Charri of Nazir. Nazir warned him not to do so.
5. ' On the 20th, Akram again did the same thing. This time Nazir and Akram fought with each other.
6. Ismail intervened and the matter was dropped. However, while leaving Akram said that if in future Nazir stopped him he would teach him a lesson.
7. ' On the day of occurrence, at about 9-00 in the morning, Nazir was busy cutting fodder. Akram came alongwith his cattle. He had a Lathi with 'him. He trespassed through the Charri with his cattle. He was followed by Sajwara and Fateh Muhammad. Akram shouted and challenged Nazir that he was going to take his cattle through his (Nazir's) crop. If he had the strength, he could stop him. Nazir in turn abused him. Muhammad Ameer son of Lal was passing by that side. He had to collect some wood. Allah Ditta and Ghulam Muhammad (P.Ws.) were also present at their tube- well.
8. ' All of a sudden, all the three appellants while shouting attacked Nazir. Akram was the first to give blow on the back of Nazir. Sajwara gave Soti blow on the back of Nazir's neck. Then Fateh Muhammad gave Soti blow on the temporal of Nazir. He fell down. Ismail, Allah Ditta, Muhammad Ameer and Ghulam came running to that place. Within their sight all the three appellants gave Soti blows to Nazir. Sajwara and Fateh Muhammad ran away. Akram was apprehended at the spot.
9. Nazir Ahmad was lying unconscious. Jamal and Muhammad Ali came running to the spot. They had Sotis with which they injured Ismail. Akram in the meanwhile managed to escape. Nazir was put on a cot. He was taken by bus to Renala Khurd by Ismail. Doctor gave ,him a chit and directed him that the injured be taken to Okara Hospital. On arrival at Okara Hospital, Nazir and Ismail, both, were medically examined. A short while after, Nazir succumbed to the injuries and his post-mortem examination was also conducted there.
10. ' In order to prove the aforesaid incident, the prosecution examined Ismail, Allah Ditta and Ghulam Muhammad P.Ws. Muhammad Ameer, whose name was given in the F.I.R., was given up as having been won over.
11. ' Muhammad Ismail (P.W.6) repeated the same version which he gave to the police in the report Exh. P.Q, which has been referred to above, and I do not think it necessary to reproduce the same.
12. However, he admitted that the complainant party had no old enmity with the accused prior to this occurrence.
13. ' Allah Ditta supported Ismail and said that he was present at his Pirr in his land when he heard alarm from the field where Nazir was cutting fodder. He rushed to that place and saw Akram armed with Sota taking his buffaloes. He exhorted Nazir that he was taking his buffaloes through his field and challenged him to do whatever he liked. Sajwara and Fateh Muhammad appellants also came there. They were armed with Sotas. Ameer and Ghulam P.W. Also arrived. Akram was first to deliver Sota blow on the back of Nazir deceased. Second blow was given by Sajwara on the back of his neck. Third blow was given by Fateh Muhammad on the right parietal region of Nazir, who fell down.
14. Thereafter, he was beaten by the three appellants. Ismail caught hold of Akram appellant at the spot, whereas Sajwara and Fateh Muhammad appellants ran away with their respective weapons.
15. Ismail was beaten by Muhammad All and Jamal, father of Akram.
16. ' The next eye-witness is Ghulam, son of Hassan, a Muslim Sheikh. He said that on the day of occurrence he was present at the tube-well of Rai Ghulam Mustafa. It was Rotiwela in the morning.
17. Nazir deceased was cutting fodder at'a distance of 11 Killa from him. He heard Roula from the field of Nazir. He rushed towards that place. The witness then repeated the same story as given by the other eye-witnesses.
18. ' Nazir was first medically examined by Dr. Shabbir Suleman, Medical Officer, Civil Hospital, Okara (P.W.2), who found two bruises and swelling of right tempero-parietal region of scalp and left parietal region of scalp.
19. ' On his death, the same Doctor, at 5-30 p.m., conducted the post-mortem examination. The same injuries were noticed.
20. ' According to the doctor, the death was due to injury on right tempero-parietal region of 'scalp and injury on the back of left parietal region of scalp with haematoma formation.
21. ' Dr. Shabbir found seven injuries on the person of Ismail. Five of them were bruises on different parts of the body. The other injuries were a lacerated wound, and an abrasion.
22. ' The appellants denied the allegation, pleaded not guilty, declined to produce any evidence in defence and said that they were falsely implicated because Rai Rajab Ali was inimical towards them. The complainant party was his tenants.
23. ' Learned counsel for the appellants contended that the eyewitnesses did not see the occurrence; they were false witnesses; no reliance could be placed on their testimony. This was the sole contention raised by the learned counsel.
24. ' The presence of Ismail under no circumstances can be denied. He was injured. There is no reason to doubt his version. The other two witnesses are also independent. They fully corroborated Muhammad Ismail.
25. ' We are, therefore, of the view that so far as Akram and Fateh Muhammad, appellants, are concerned, there is not the least doubt about their participation in the commission of crime.
26. However, so far as Sajwara is concerned, his case is not free from doubt. The accusation against him was that he inflicted a blow with Soti on the back of the neck of Nazir. This was the stand taken by Ismail in the FIR as well as at the trial.But the medical evidence does not support it. Therefore, we are of the view that he is entitled to the benefit of doubt. His conviction and sentence is hereby set aside. He is on bail. His bail bond shall stand discharged.
27. ' This leaves us to examine the Criminal liability of Akram and Fateh Muhammad appellants. Fateh Muhammad has been attributed fatal injury, but we don't think that he has been rightly convicted under section 302, P.P.C. And sentenced to death. It is in the F I R that Nazir Ahmad abused the appellants. Then the attack was opened. It is not the prosecution case that there was any previous enmity or bad blood between the parties. As a matter of fact, Ismail amitted that the relations between the parties were not strained. The clash took place because both the parties were adament about their respective stance. The mere fact that the appellants were carrying sticks or Dang does not show the intention to kill, more especially keeping in view the injuries attributed to the two appellants.
28. ' So far as Fateh Muhammad is concerned, it is not a case of murder, but culpable homicide not amounting to murder. His conviction is accordingly altered to the one under section 309, Part II, P.P.C. He is sentenced to 7 years' R.I. He shall also be entitled to the benefit under section 382, Cr.P.C.
29. Fateh Muhammad was fined Rs, 5,000 by the trial Judge. This amount is inadequate. We, therefore, gave notice to the learned counsel for the appellant as to why the amount of fine be not enhanced.
30. He accepted the notice. We enhance the amount of fine to Rs, 15,000 (Fifteen Thousand).
31. The injury attributed to Akram was found to be simple. His conviction is accordingly altered to one under section 323, P.P.C. The sentence already undergone will meet the ends of justice. We .
32. However, the sentence of fine is maintained. He is on bail. His bail bond stands discharged.
33. ' The entire amount of fine shall be paid as compensation to the heirs of the deceased. The Collector concerned shall take immediate steps for the recovery and payment of the amount of fine under intimation to the Registrar of this Court.