1. Muhammad Afzal Zullah, J.--Ismail (60) his two sons Barkat (25) and Boota (27) his uterine brother Hassan (40) and Ghulam Muhammad (35) (not related) were tried for the murder of Ghulam Ali, their co-villager. Vide his judgment dated 28-11-1967 the learned Additional Sessions Judge, Lahore Camp at Kasur, convicted Hassan Din under section 302, P. P. C. and sentenced him to transportation for life. Boota was convicted under section 324, P. P. C. and sentenced to one year R.
1. Ismail and Barkat were convicted under section 323, P. P. C. and sentenced to a fine of Rs. 500 each or in default to undergo six months' R. I. each. Ghulam Muhammad was acquitted. The convicts other than Boota have filed Criminal Appeal No. 133 of 196. The State has by Criminal Appeal No. 528 of 1968 challenged the acquittal of Ismail, Barkat and Boota for the offence under section 302/34, P. P. C. Both the matters are being disposed of together.
2. The prosecution case, as disclosed in the statement of Niaz Ali (P. W. 10) who is the brother of the deceased and is also the first informant, is as follows :-- About three years before the occurrence (which took place on 1-3-1965 at 6/7 a.m.) the deceased was in cultivating possession of l2 acres of land belonging to Jan Muhammad and Ali Muhammad.
3. It was on lease with him for five years. Three years had already expired. Although the lease was renewed every year, yet according to Niaz Ali the agreement between the parties was that it will continue for five years. The deceased had joint cultivation with Niaz Ali. In some fields, there were wheat, fodder and sugar-cane crops while one field of four kanals was vacant because prior to the occurrence there was cotton crop, in it which had been harvested. They had a tubewell of their own on the eastern side of the aforesaid field. On the morning of the day of the occurrence, the witness and his brother Ghulam Ali deceased were going from their tubewell to their village. When they reached near the said field, they saw Hassan and Barkat accused ploughing the said field. Ismail and Boota accused were sitting nearby. Boota had a barchi while Ismail had a dang. Two spare dangs were lying near them. The deceased and the witness however, were empty-handed. The deceased told Hasan accused that "he had got this land on lease for another year" and asked him as to why they were ploughing it. Hasan replied that they had obtained the lease from the owner for two years through a deed. Ghulam Ali answered that even in accordance with the terms of the previous lease there were still two months for its expiry and that they should not have disturbed the possession. Hasan insisted that they had taken the possession and that they would maintain it and at the same time he and Barkat started using abusive language. The witness and the deceased abused the accused in return. Then Hassan accused gave 2/3 dang blows to the deceased on his head. He fell down. Boota gave him a barchi blow which fell in the region of his testicles. Barkat gave a dang blow on the head of Niaz P. W. while Ismail gave a dang blow on his shoulder and right arm. Ghulam Muhammad accused also came there but he did not cause any injury to anybody.
4. Jamil (P. W. 11) and Inayat (P. W. l2) reached the spot and witnessed the occurrence.
5. Chiragh (P. W. 13) and one Muhammad Ali removed the two injured to Bhai Pheru Hospital. Jamil P.
6. W. accompanied them. Ghulam Ali was admitted in the hospital. The doctor sent a ruqqa at Police Station Sarai Mughal which is at a distance of three miles from the place of occurrence but is at a distance of about seven miles from the hospital. Ch. Nathay Khan S. I. (P. W. 17) reached the hospital and recorded the statement (Exh. P. A.) of Niaz Ali at 3 p.m. This statement was sent to the police station and a case was registered at 4-30 p.m.
7. During the investigation a barchi P. 3 was recovered at the instance of Boota accused. A dang (P.
8. 6) was recovered at the instance of Hassan Din accused. A parna (P. 2) (piece of cloth) which was blood-stained tied on the head of Boota was removed and taken into possession. A soti each was recovered from Ismail and Barkat accused. These two lathis were not bloodstained. The aforementioned barchi and parna of Boota and dang of Hassan Din accused, were found to have been stained with human blood. Ismail produced an unregistered lease deed (Exji. P. J.) purported to have been written a day before the occurrence i e. 28-2-1965 on behalf of the owners of the land, namely Jan Muhammad and Ali Muhammad in favour of Ismail accused. The lease purports to be for one year. In the opening part thereof it is mentioned that the entire land is in possession of the owners. At another place, however it is mentioned that the possession of vacant land had been delivered to the lessee while that of land under crops would be delivered when it would become vacant. The document is witnessed by Ghulam Muhammad accused. The stamp-paper on which the deed purports to have been written is shown to have been sold on 28-2-1965.- The police took the document into possession vide memo. (Exh. P. J./l).
9. Dr. M. A. Ghuman P. W. examined Ghulam Ali on 1-3-1965 at 11 a.m. and found the following injuries on his person :--
(1) A contused wound l'x 1/4" on the left side of the head in the parietal region. It was skin deep.
(2) There was a haematoma in the parietal region of the left side of the head in area of 2" x 1".
(3) There was a contusion 1/4' x J" on the outer canthus of - the left eye. . ............... ............................................ (4) An incised found l"x "x on the upper part of the' left scrotal sac."
10. Injury No. 1 was kept under observation. Injury No. 2 was dangerous to life while Nos. 3 and 4 were declared simple. Injury No. 4 was caused by sharp-edged weapon while others were caused with a blunt weapon. The injuries were fresh. According to the doctor, injury No. 4 could be caused by a spear. He also examined Niaz Ali P.W. at 3-45 p.m. and found the following injuries on his person :--
(1) There was swelling 3"xl' on the darsom of the right wrist-joint.
(2) There was a contused wound 3' x 3/S" x scalp deep on the top of the head in the middle.
(3) An abrasion 2" x on the right back of the shoulder on the shoulder blade.
(4) A reddish contusion 5|"xi" on the right shoulder blade a little above injury No. 3.
(5) A reddish contusion 8"x on the back of the left arm going up to the shoulder blade."
11. All the injuries were caused with blunt weapon were of fresh duration and were simple.
12. This doctor did not mention as to when Ghulam Ali expired.
13. Dr, Nasib R. Awan P. W. performed the post-mortem examination on 2-3-1965 at 3-30 p.m. His observations are as " follows :--
(1) A contusion 3'x 3' at the left side of the head.
(2) An abrasion J" x i" and a swelling lj'xlj" around it on the right side of right eye.
(3) A lacerated wound x skin deep on the left side of the head.
(4) . An abrasion |/xj" on the top of head. On the dissection of the body I found the following injuries :--
(1) A fracture V long transverse on the left side of head involving left parietal of left temporal bone.
(2) Members were intact but were covered in clotted blood.
(3) Brain depressed due to clots."
14. In his opinion the death was due to shock and haemorrhage following fracture of skull. All injuries were caused by blunt weapon. Fracture of the skull was sufficient to cause death in the ordinary course of nature. The time between injuries and death was about 36 hours and that between death and the postmortem was about 24 hours. From this it appears that the death took place in the after noon of 1-3-1965. On question by the public prosecutor this doctor admitted that there was a possibility that he might have missed noticing the injury with sharp-edged weapon described at No. 4 in the examination conducted by Dr. M. A. Ghuman, He further opined that the particulars of this injury indicated that it could be caused by a spear but with a very polite force. Under cross-examination he stated that he is an experienced doctor and that he had always conducted the post-mortem examinations very carefully and that he did not remember having ever missed any injury previously. This injury according to him could have been caused by a fall on the spade of the plough and he described it as a minor injury". He also made another very important admission in favour of the accused, namely that he could not say which of the two injuries on the left side of the head caused the long fracture on the left side of the skull.
15. At the trial, Niaz Ali, Jamil and Inayat P. Ws. gave the ocular account of the occurrence. Chiragh P.
16. W. deposed about the deceased having given out the names of his assailants before he was removed to the hospital. Muhammad Shafi (P. W. 9) Abdul Aziz (P. W. I6) Muhammad Qamar A. S. I.
17. (P. W. 18) and Bahadur Shah, S. I. (P. W. 19) have supported the aforementioned recoveries.
18. In the defence plea the assertion by Niaz Ali that the land was to continue with the deceased for another year or so was denied. Ismail and Boota accused asserted that the owner had given the land on lease to Ismail and that they had taken the possession. Both of them admitted their presence at the spot and claimed that the deceased and his brother Niaz Ali P. W. tried to forcibly oust them when they were ploughing the land and that in the ensuing scuffle they suffered injuries.
19. Two insignificant .abrasions were found on Boota accused (Exh. PI. X. P. W). He explained that the same were caused to him by Ghulam Ali deceased when he tried to take forcible possession of the land which was being ploughed by him and his father Ismail. Hassan, Barkat and Ghulam Muhammad denied their participation in the occurrence and attributed their implication due to party faction in the village. No evidence in defence was, however, produced.
20. The learned trial Judge did not rely on the statement of Chiragh Din with regard to the dying declaration. He however, accepted the prosecution version given by the eye-witnesses and Noor Muhammad (P. W. 15) that the deceased was in possession of the land in dispute. When the deceased objected to this he and his brother were injured by all the accused except Ghulam Muhammad. He was of the view that the culprits were individually responsible for their own acts.
21. Therefore he convicted Hassan Din for an offence under section 302, P. P. C. Ismail and Barkat for an offence under section 323 and Boota for an offence under section 324 and sentenced them as noted above. He however, acquitted Ghulam Muhammad accused on the ground that nothing inculpatory was said by the witnesses against him at the trial.
22. With the help of the learned counsel we have gone through the evidence. It is not possible to accept the statement by Niaz Ali made at the trial that the land was under lease with the deceased for five years. In the F. I. R. his case was that the lease was for three years and even though the period of lease had pot expired the owner had extended the lease for another year and had already obtained the earnest money from the deceased. The position in the F. L R. appears to be correct because Noor Muhammad (P. W. 15) whose statement has not been seriously challenged before us categorically stated that the lease with Ghulam Ali deceased was for three years. We, therefore, hold that the lease with the deceased of the land in dispute on behalf of the owners was for a period of three years and was to expire by the end of Rabi, 1965. It is the case of both the parties that the field of four kanals in dispute had become vacant by the day of occurrence because the deceased and his brother had harvested the cotton crops from that field normally the stocks of cotton plants remain in even after the cotton picking season which must have ended by February 1965. As both the parties admit that the field was vacant, therefore it will have to be presumed that the deceased and his brother must have removed the stocks. If the lease in favour of the deceased had been extended by one year he could have very well prepared this field for the next crop. Even if it had not been extended he could have sown some crop in the zaid Rabi like fodder of some kind, torya etc. The possession of the deceased, therefore, in normal course of event even if the field was lying vacant, would have remained with him till the end of the Rabi season ; regardless of the fact whether or not another person had taken the lease from the owner. It is not denied by the defence that till 28-2-1965 when the alleged lease deed was written in favour of Ismail the deceased was in possession of the field in dispute. By this deed Ismail and his son Boota claim to have obtained the possession. Learned counsel for the appellants has argued that the field was vacant, therefore the deceased had surrendered the possession to Ismail but at the same time he admitted that this surrender could not have taken place on 28th February because there is no evidence to that effect. Moreover, according to him the deed was written on that day and Ismail may have remained at Bhai Pheru and there was no occasion for them to have taken the physical possession on that day. The very fact that on 1-3-1965 Ismail and Boota claim to have started ploughing the land shows that it was on this day that they physically tried to take the possession. Thus still shortly before the occurrence, the possession of the field in dispute was with the deceased. This inferential supposition is supported by definite assertion by Niaz Ali and a statement made by Noor Muhammad P. W. to the effect that till the occurrence the disputed land was with Ghulam Ali as a tenant". We, therefore do not believe that Ghulam Ali had suffered the possession either to the owners or Ismail accused. It is also contended by the learned counsel for the appellants that Ismail having a lease deed in his possession and the field being vacant took physical possession of the vacant land under a bona fide belief that he had a right to do so. We do not agree with him. The accused party was fully armed. They had also some spare lathis with them.
23. Therefore when they went to the field to plough the land, they expected that Ghulam Ali would object to it. This supposition is supported by the fact that some days prior to the occurrence Ali Muhammad son of Noor Muhammad tried to plough the land in dispute under a claim that he had become a new lessee under Jan Muhammad, but according to Noor Muhammad P. W., Ghulam Ali stopped him saying that "he was in possession of that Land". Ali Muhammad having obtained the lease from Jan Muhammad has been admitted by both Ismail and Boota. Moreover, the conduct of the accused shows that they knew that the deceased was resisting the taking over of the possession by anybody else of the land which was under lease with him. We have already held that the deceased had not voluntarily surrendered the possession and, in the circumstances noticed above it appears that the accused party wanted to take forcible possession under colour of so-called lease deed. Jan Muhammad could have supported the claim of the appellants but he has not been produced in defence. We are of the view that the attempt by the accused to take the possession of the land in dispute was not in bona fide exercise of any right. It amounted to trespass which had not settled before the occurrence.
24. Muhammad Ismail and Boota have admitted their presence. Barkat is son of Ismail and Hassan Din is his uterine brother. The major role of fatal injury has been attributed to Hassan Din. The witnesses had no reason to falsely implicate Hasan Din. If he was not present at the spot. It appears that Ismail wanted to take possession of the land by use of force ; therefore his. having taken his sons and Hassan Din along is not at all improb able. The complainant could have attributed a more serious role to Boota or Barkat, the sons of Ismail, but he has not done so. It appears that he has made an honest disclosure of what actually happened at the spot. There is some evidence to the effect that Jamil and one Arif were election rivals. It appears that the said rivalry continued between them and developed into some sort of antagonism. But there is no evidence to connect the two concerned parties of this case i.e., the deceased and his brother on the one side and Ismail and his brother and sons on the other with those of Arif and Muhammad Jamil P. W. They had not been entangled in these parties. Arif appears to have gone with the accused party to the police station and he might have supported them in the conduct of the case. But that circumstance is not enough to come to a conclusion that Niaz Ali would have falsely implicated any of the accused persons simply because one of his witnesses namely Jamil was inimical to Arif. Moreover there is no reason why he would have specifically named Hassan Din as the main culprit in the case. Dang (P. 6) which was found to have been stained with human blood was recovered at the instance of Hassan Din. A barchi and a perna which were found to have been stained with human blood were recovered from Boota. After going through the evidence we are satisfied that there is no chance of false implication in this case.
25. It remains to be determined as to what offences have been committed by the appellants. Boota gave only one blow with barchi. The injury which was found on the testicles of the deceased was simple. Hassan Din is alleged to have given two soti blows on the head of the deceased. The doctor was unable to say as to which of the two injuries was responsible for the fracture. It can, therefore, be ligitimately presumed in his favour that he caused only one grievous injury to the deceased. Niaz Ali suffered five injuries with blunt weapon but he has attributed one blow each to Ismail and Barkat in this behalf. The nature and number of injuries show that the accused had no intention to kill Ghulam Ali deceased or for that matter Niaz Ali P. W. Ghulain Muhammad has been acquitted. From the evidence it appears that he did not physically participate in the occurrence. Therefore, sections 148, 149, P. P. C. do not apply. On the facts as analysed above this does not appear to be a case of application of section 34, P. P. C. either. The common intention of the accused could not be more than that of giving a beating to the person who would resist the taking over of the possession. Hassan Din appellant who caused two injuries on the head of the deceased, can however be attributed the knowledge that his act was likely to cause death, but without any intention to cause death or to cause such bodily injury as was likely to cause death We therefore hold that Hassan Din is not guilty under section 302, P. P.
26. C. The offence committed by him is under section 304, part If, P. P. C. He had no personal interest in taking the possession of the land in dispute. He in all probability acted under the influence of his elder uterine brother Ismail and caused two injuries with a blunt weapon only one of which proved fatal. Keeping in view all the circumstances we consider that a sentence of five years' R. T. to him (Hassan Din) will meet the ends of justice. We . The conviction of, and sentences awarded to, the other convicts are appropriate and do not require any modification. We, therefore, uphold and maintain the same. It is, however, directed that the sentence of fine awarded to Ismail and Barkat shall also be treated as one under section 544-A, Cr. P. C. The fine if already realized or if not so when realized shall be paid as compensation to the heirs of Ghulam Ali deceased.
27. In view of the above discussion and finding, the appeal of Hassan Din is partially accepted while that of Ismail and Barkat is dismissed. There is no force in the State appeal which is also dismissed. .