' Muhammad Islam and Muhammad Akhtar were tried by an Additional Sessions Judge of Multan under section 302/34, P.P.C. For the murder of Rahim Khan, deceased. Whilst Muhammad Islam was convicted under section 302, P.P.C. For the said murder and sentenced to life imprisonment with a fine of Rupees Two Thousand (Rs, 2,000) or in default thereof to undergo further rigorous imprisonment for two years, Muhammad Akhtar, accused was given the benefit of doubt and acquitted of the charge. Half of the fine, if realised, was ordered to be paid to the legal heirs of the deceased. The appeal (Criminal Appeal No, 890 of 1977) preferred by Muhammad Islam, convict, against his conviction and sentence and the private' revision (Criminal Revision No, 103 of 1980) preferred by Muhammad Shafi, complainant, against the acquittal of Muhammad Akhtar, accused, for the enhancement of sentence of Muhammad Islam, convict and for grant of compensation under section 544-A, Cr.P.C. To the heirs of the deceased, are both now before me for disposal.
2. The brief facts of the case are that the deceased Rahim Khan and Shameer 'Khan, father of Islam accused, had jointly installed a tube-well at Chah Tibbewala. Shameer Khan used to quarrel with Rahim Khan on the turn of water of the tube-well. Therefore, Rahim Khan installed a separate tube- well at Chah Murdewala and demanded Rs, 5,000 from Shameer Khan as his share of cost of the tube-well jointly installed by them at Chah Tibbewala.
3. On 24-5-1976, Abdul Rehman P.W.6 was going to purchase medicine when at about 10-00 a.m.
He met Muhammad Aslam on the way. He demanded Rs, 5,000 from Muhammad Aslam, brother of Islam accused, on which there arose a quarrel between them and they exchanged brickbats and Abdul Rehman P.W.6, who was injured, was taken to the hospital, where he was admitted and medically examined. On the same day at about 4-00 or 5-00 p.m. Muhammad Shafi complainant P.W.7, alongwith Rahim Khan deceased, was present at their house when Islam, accused, armed with a knife, and Akhtar, accused, empty handed, came there. They proclaimed that they had come to teach a lesson to Abdul Rehman P.W.6 for having caused injuries to Aslam with brickbats.
The deceased entreated them, whereupon Akhtar accused caught hold of the deceased and Islam accused gave a knife blow on the right side of his flank. Muhammad Idris P.W.8 and Muhammad Hussain P.W.9 were also present there at the scene of occurrence, who also rushed to the spot and tried to apprehend the accused, but they managed to escape from there, with Islam, accused, brandishing his knife. The deceased fell down and succumbed to his injury. Mst. Rashida Begum (given up P.W.) also witnessed the occurrence. Muhammad Shafi P.W.7 proceeded to Police Station Shujabad where he lodged F.I.R. Exh. P.F. At 5-30 p.m. Sher Muhammad S.I. P.W.10 then proceeded to the spot, where he collected blood-stained earth from the place of occurrence, vide memo. Exh.
P.G. After preparing the necessary papers, he sent the dead body of Rahim Khan, deceased, to the mortuary for post-mortem examination. The same day, both the accused were arrested by the Investigating Officer. Muhammad Islam, accused, produced bloodstained knife P.3 before the Investigating Officer, which was taken into possession vide memo. Exh.P.H. In the presence of Muhammad Idris P.W.8, Muhammad Hussain P.W.9 and Sher Muhammad S.I. P.W.10.
4. On 25-5-1976 at 7-00 a.m. Dr. Muhammad Rafique P.W.1 conducted the post-mortem examination on the dead body of Rahim Khan, deceased, and found a stab wound 11/2" x 1/2" x pleural cavity deep on the front of right chest, 1" lateral to the right nipple. The media stinum was cut through. The right auricle of heart was punctured. Death was due to shock and haemorrhage as a result of the said stab wound which individually was fatal in the ordinary course of nature.
Time between the injury and death was within five minutes and that between death and post- mortem examination within 12 to 16 hours. The same day at 11-45 a.m. Dr. Muhammad Rafique P.W.1 examined Abdul Rahman P.W.6 and found the following injuries on his person:-
(1) A contused wound 1" x 1/2" on the centre of head.
(2) Swelling on the left side of the face 2" x 2".
(3) Two bruises 5" x 1/2" on the back of left chest.
(4) An abrasion 1/8" x 1/8" on the left little finger.
' Injuries Nos. 3 and 4 were declared as simple. The rest were advised for X-Ray. All were caused by blunt weapon. The probable duration of the injuries was within 2 to 3 hours.
5. After completing the necessary investigation, the challan against both the accused was sent up.
6. At the trial, the prosecution produced Muhammad Shafi P.W.7 and Abdul Rahman P.W.6 to prove the motive, Muhammad Shafi P.W.7, Muhammad Iddris P.W.8 and Muhammad Hussain P.W.9 in support of the ocular account, Sher Muhammad S.I. P.W.10, Muhammad Iddris P.W.8 and Muhammad Hussain P.W.9 in proof of the recoveries and Dr. Muhammad Rafique P.W.1 to corroborate the medical testimony. Both the accused denied the accusations chat were levelled against them and imputed their false involvement to
7. The learned trial Judge, relying upon the motive, the ocular account, the recoveries and the medical evidence, convicted and sentenced Muhammad Islam, appellant, and acquitted Muhammad Akthar, accused, as stated in para 1 above.
8. I have heard the arguments of the learned counsel for the appellant, the complainant and the State and have also perused the evidence and examined the record. The evidence as regards motive is furnished by 'Abdul Rahman P.W.6 and Muhammad Shafi P.W.7. According to the testimony of Muhammad Shafi P.W.7, his father Rahim Khan, deceased, and Shameer Khan, father of Muhammad Islam, appellant, had installed a joint tube-well at Chak Tibbewala, but the latter used to quarrel with the former off and on, over the turn of water. Rahim Khan, deceased, therefore, installed another tube-well at Chah Murdewala and demanded Rs, 5,000 from Shameer Khan as his share of the cost of the tube-well jointly installed by them at Chah Tibbewala. According to the testimony of Abdul Rahman P.W.6, on the date of occurrence i,e, 24-5-1976 at 10-00 a.m. He was going from his house to fetch medicine for himself when he met Muhammad Aslam, brother of Muhammad Islam, appellant, on the way and he demanded the sum of Rs, 5,000 which he owed to him regarding the installation of joint tube-well. Upon this, Muhammad Aslam gave him a Khurdam blow on his head, as a result of which he fell down. Din Muhammad, brother of Muhammad Aslam, also injured him with a brickbat. He then came home and narrated the incident to Rahim Khan, deceased, whereafter he was taken to the hospital and medically examined, Muhammad Shafi P.W.7 confirmed the story given by Abdul Rahman P.W.6, which he stated was given to him by the latter after he had returned home and narrated to him the incident. According to Muhammad Shafi P.W.7, Abdul Rahman P.W.6 had informed him that there had been a quarrel between himself and Muhammad Aslam and the latter had injured him with a brickbat. Thereafter, Abdul Rahman P.W.6 was taken to the hospital where he was medically examined and admitted. In cross-examination, Abdul Rahman P.W.6 stated that he was injured by both Muhammad Aslam and Din Muhammad, brothers of Muhammad Islam. He also stated that he was examined by the Medical Officer on the same day and that the doctor had issued a certificate on the same day. Muhammad Shafi P.W.7 also stated in cross--examination that his father had lodged a suit against Shameer Khan to get back a part of his outlay on the joint tube-well. As regards the debt owed by Shameer Khan, father of Muhammad Islam, appellant, to Rahim Khan, deceased, the evidence is clear and convincing and admits of no doubt. As regards the second part of motive relating to the incident which took place on 24-5-1976 at 10-00 a.m., it is submitted on behalf of the appellant that no such incident took place and that Abdul Rahman P.W.6 self-suffered these injuries in order to create a motive and that he was not medically examined until 25-5-1976 i,e, a day after the so-called incident. In this connection, learned counsel referred to the medico-legal report Exh. P.B. Of Abdul Rahman P.W.6 which shows that he was examined on 25-5-1976 at 11-45 a.m. And that the injury on his person was found to have been inflicted within two to three hours of the medical examination. The medico-legal report of Abdul Rahman P.W.6 clearly shows the date and hour of the arrival of Abdul Rahman P.W.6 as 24-5-1976 at 11-30 a.m. And the date of his admission as 24-5-1976. At the bottom of the left column, the words "Shujabad" and the date "24-5-1976" also are recorded.
However, on the top right hand corner the date and time "25-5-1976 11/45 a.m." appear, which apparently creates confusion. Very likely, the said date should have been 24-5-1976. However, the doctor, when he gave evidence, stated that on the same date (i,e, 25-5-1976) that he conducted the post-mortem examination on the dead body of Rahim Khan, he medically examined Abdul Rahman P.W.6. To another question he also stated that Abdul Rahman P.W.6. Had arrived in the hospital at 11-30 a.m. And was admitted in the hospital at that time. The evidence thus creates a confusion whether Abdul Rahman P.W.6 was admitted in the hospital at 11-30 a.m. And examined at 11-45 a.m. On 24-5-1976 or 25-5-1976, the benefit of which can only be granted to the appellant, in the absence of any attempt by the Public Prosecutor to confront the doctor with the dates written on the left column of the medico-legal report Exh.P.B., in order to show that he had examined the said witness on 24-5-1976. However, so far as the actual facts of the matter are concerned, there cannot be any doubt that some quarrel did take place on 24-5-1976 at 10-00 a.m. Betweeen Abdul Rahman P.W.6 and Muhammad Aslam, during which occurrence both assaulted each other with brickbats. This fact also finds recorded in the F.I.R. Exh.P.F. And stands also corroborated from the testimony of Abdul Rahman P.W.6, Muhammad Shafi P.W.7, Muhammad Iddris P.W.8 and Muhammad Hussain P.W.9. The first two witnesses refer to Abdul Rahman P.W.6 being beaten by Muhammad Aslam,whereas the latter two refer to Abdul Rahman P.W. 6 having beaten Muhammad Aslam.Assault and battery between the two can, therefore, safely be deduced from the ocular evidence. However, the doctor's testimony creates confusion and since the Public Prosecutor could not take pains to have the matter claeified, so much of the testimony as regards the second motive which refers to Abdul Rahman P.W.6 having suffered injuries must, therefore, be rejected.However, the incident itself cannot be rejected nor the fact that Muhammad Aslam received injuries at the hands of Abdul Rahman P.W.6, as deposed by Muhammad Iddris P.W. 8 and Muhammad Hussain P.W.9, who are independent witnesses. To this extent second part of the motive stands established.
9. The ocular account in this case is furnished by Muhammad Shafi P.W.7, Muhammad Iddris P.W.8 and Muhammad Hussain P.W.9. Muhammad Shafi P.W.7 is the son of the deceased and was present at the relevant time with his father Rahim Khan, deceas'ed, when the incident occurred.
' He is, therefore, a natural witness. Muhammad Iddris P.W.8 is resident of Shujabad, two miles away from the place of occurrence, whereas Muhammad Hussain P.W.9 resides in the same village. Both were returning from Chah Topanwala after attending a feast and were returning to their respective houses, when they happened to stop near the tube-well of Rahim Khan deceased to quench their thirst. They were sitting on a Charpoy a few paces to the south of tube-well, when the appellant and the acquitted accused appeared and the incident took place. Being passersby, they were natural witnesses to the occurrence.Both these witnesses are neither related to the deceased nor have any enmity or animus against Muhammad Islam, appellant, or Muhammad Akhtar, acquitted accused. Nothing was brought on record to show that these two disinterested persons could not be confidently relied upon.The evidence of the witnesses is natural and convincing and Inspires confidence. Muhammad Iddris P.W.8 and Muhammad Hussain P.W,9 are disinterested witnesses. In these circumstances, the ocular account clearly establishes the participation of Muhammad Islam, appellant, in the incident leading to the death of Rahim Khan, deceased at his hand.
10. The only question that now remains is that relating to sentence.It cannot be denied that Muhammad Islam, appellant, and Muhammad Akhtar, acquitted accused, when they came to the residence of Rahim Khan, deceased, had no intention to murder him. In fact, they came looking for Abdul Rahman P.W.6, who had had a quarrel with Muhammad Aslam, brother of Muhammad Islam, appellant, and had injured him with a brick-bat. According to the consistent testimony of the eye- witnesses, the appellant and the acquitted accused both complained that they had come to teach a lesson to Abdul Rahman P.W.6 for having caused injuries to Muhammad Aslam with a brickbat.
According to Muhammad Shafi P.W.7, his father entreated them, according to Muhammad Iddris P.W.8, the deceased asked them to run away and according to Muhammad Hussain P.W.9, the deceased entreated them and asked them to go away. Thereafter, it is alleged that the acquitted accused caught hold of the deceased, which part of the story has been rejected by the trial Judge, and Muhammad Islam, appellant, gave him one solitary knife blow in his right flank. It is unimaginable that on Rahim Khan, deceased's mere entreatment, the appellant, without any provocation, would have fatally injured the deceased. What appears is that very likely thedeceased asked the appellant and/or the acquitted accused to run away in foul language, which led to a sudden quarrel and grappling and which provoked the appellant to give the solitary injury in the chest of the deceased. There was no premeditation at all on the part of the appellant to murder the deceased. The appellant gave a single blow with knife having an ordinary blade. In such circumstances, the Court has treated the case as one falling under section 304-11, P.P.C. If any authority is required for this view, Burial v.The State PLD 1982 Kar. 152, Mir Khan v. The State 1981 P Cr. L J 511, Shadoo v. The State 1981 PCrLJ 610, Bashir Ahmad v.The State 1975 P Cr. L J 203 and Muhammad Iqbal v. The State 1976 P Cr. L J 409 may be referred to. Taking all circumstances into consideration, the appellant does not appear to be liable under section 302, P.P.C. But under section 304-11, P.P.C. And 1, therefore, alter his conviction from that under section 302, P.P.C. To one under section 304-11 P.P.C. The appellant was arrested on 24-5-1976 and not bailed out by the High Court till 13-11-1979, after his conviction was recorded on 29-9-1977. The appellant thus has undergone one year, four months and five days' detention as an under-trial prisoner and two years, one month and fourteen days' detention as an accused.In short, the appellant has undergone three years, five months and nineteen days' detention, both as an under-trial prisoner and as a convict. Taking all circumstances in to consideration, the ends of justice would be met if the appellant is sentenced to the period of detention already undergone.However, the appellant is liable to compensate the heirs of he deceased for this tragic incident.The fine of Rupees Two Thousand (Rs,2,000) awarded by the trial Judge and the sentence ordered in default of payment of fine by him, shall stand. However, the appellant shall also pay Rupees Five Thousand (Rs,5,000) to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. If the said compensation is not paid, the appellant shall undergo six months' rigorous imprisonment.This appeal, therefore, stands partly accepted in terms of alteration of conviction and reduction of sentence, as stated above. The appellant is on bail. In case the fine and compensation are paid, his bail bond shall stand discharged. There being no merit in the revision petition (Criminal Revision No,103 of 1980) filed by Muhammad Shafi, complainant, the same is dismissed in limine.