' This is an appeal by Abdul Ghafoor 65 and his son Muhammad Anwar 17 against their conviction vide judgment, dated 21-12-1983 by Mr. Iftikhar Ahmad Cheema, Additional Sessions Judge, Sialkot.
They both were sentenced to imprisonment for life and fine of Rs,500 or in default two months R.I.
Under section 302/149, P.P.C. Each and to a fine of Rs,500 or in default two months R.I. Under section 148, P.P.C.
' Mst. Naseeban 25, Nazir Ahmad 55 and Muhammad Siddique 25 were acquitted from the charge under section 302/149, P.P.C. These three accused were sentenced to a fine of Rs,500 or in default two months R.I. Under section 148, P.P.C. Mst. Naseeban was further sentenced to pay a fine of Rs,1000 or in default three months R.I. Under section 324, P.P.C. For causing injuries to Barkat P.W., Nazir Ahmad was sentenced to imprisonment already undergone by him under section 323, P.P.C.
For injuring Fazal Ahmad P.W. Muhammad Siddique was sentenced to pay fine of Rs,500 or in default two months R.I. Under section 323 P.P.C. For causing injuries to Barkat P.W. These three accused did not file any appeal to challenge their conviction and sentences.
' Fazal Ahmad complainant filed Criminal Revision No,79 of 1984 with a prayer that "the impugned judgment may be reversed so as to meet the ends of justice." It was not admitted.
' Both these matters being directed against one judgment will be disposed of together.
2. The occurrence in this case took place on 10-3-1982 at 10 a.m. Near the house of. Abdul Ghafoor accused in village Arki Dogran, about 7 miles from police station Phalora District Sialkot. The formal F.I.R. Exh.PA/1 was recorded at the police station by H.C. Manzoor H,Issain P.W.2. On 10-3-1982 at 8-
30. p.m. On the basis of statement Exh.P.A. Recorded by A.S.I Muhammad Ashraf P.W.4 at Civil Hospital Sialkot on the same day at 7-15 p.m. At the instance of Fazal Ahmad P.W.8.
3. It was stated by Fazal Ahmad complainant in his statement that he was resident of Arki Dogran.
He cultivated the land of Mirza Latif to the South West of the village as tenant and had sown wheat crop. On account of rains Deg Nala was flooded. On 10-3-1982 at about 10. A.M. Abdul Ghafoor alias Zahoor, Anwar, Siddique, Nazir and Mst. Naseeban, who have their houses to the West of the village, diverted the flood water from the Western side to his wheat field. He and his brothers Barkat P.W.
And Abdul Ghani deceased objected to the diversion of water in their land by them who started abusing them. They returned abuses. At this Abdul Ghafoor alias Zahoor, Anwar, Siddique and Nazir who had sticks and Mst. Naseeban who had Dhangi flared up and attacked them. Abdul Ghafoor and Anwar accused gave one stick blow each to Abdul Ghani deceased on head. He fell down.
Barkat P.W. Tried to intervene. Mst. Naseeban Bibi caused injuries to him with Dhangi. Siddique and Nazir accused gave stick blows to Barkat. He also went forward to save his brother. He was given stick blow by Nazir accused. The occurrence was also witnessed by his brother Bashir. They raised alarm. The accused left the spot with their respective weapons. Abdul Ghani deceased who was still alive was brought to Civil Hospital where he died as a result of the injuries.
' A.S.I. Muhammad Ashraf on receipt .Of information about admission of Abdul Ghani in hospital went there and recorded the statement Exh.P.A. At the instance of Fazal Ahmad P.W.
4. Abdul Ghani deceased when still alive was medically examined by P.W.7 Dr. Muhammad Saeed at 5-50 p.m. On 10-3-1982. The medical officer found the following two injuries.
(1) Lacerated wound 1" x 1"scalp deep with underneath swelling 3" x 2" on the right parietal region.
(2) Swelling 4" x 3" on the right temporal region in front of right ear.
' Both the injuries were kept under observation and were of within 6/7 hours duration. These had been caused by blunt weapon.
' On the same day at 6-35 p.m. The same medical officer examined Barkat All P.W. And found the three injuires on his person. Injury No,1 was incised wound 2" x x bone deep on left perietal region.
Injury No,2 was a swelling on left fore-arm with no visible sign of injury. Injury No,3 was a bruise of back of left chest. All these injuries were simple in nature, and of 6/7 hours duration. Injury No,1 was by sharp edged and the remaining two injuries by blunt weapon.
' On the same day at 6-50 p.m., the same medical officer examined Fazal P.W. And found an abrasion in x in on the back of left hand. The injury was simple in nature, caused by blunt weapon and of 6/ hours duration.
' Abdul Ghani died in hospital on 10-3-1982 at 6-45 p.m. Dr. Muhammad Saeed P.W.7, on 11-3-1982 at 10-30 a.m. Conducted postmortem examination on his dead body. On external examination he foun the same injuries as stated above.
' On dissection he found clotted blood on the right side of skull on the perito-occipital-temporal region under scalp. Six pieces of fractured skull were found pressed down on right side.
Memberanes were lacerated and right side of brain was full of clotted blood. Brain matter was cut at six places and lacerated and had clotted blood. Both the injuries were of blunt weapon and were grievous and dangerous to life and sufficient to cause death in the ordinary course of nature. The time between injuries and death was 7/8 hours and post-mortem was conducted after about 16 to 18 hours of death.
5. The police after registration of the case undertook investigation. Abdul Ghafoor alias Zahoor appellant was arrested on 1-4-1982, while remaining were arrested on 15-3-1982.
' Muhammad Anwar accused while in police custody on 20-3-1982 led to the recovery of stick P.4 from his house which was taken in possession by S.I. Tariq Hanif P.W.11 in presence of Muhammad Latif P.W.5 and Ghulam Haider P.W. (not examined).
' On 2-4-1982 Abdul Ghafoor alias Zahoor accused while in police custody led to the recovery of Sota P.5 which was taken in possession by S.I. Tariq Hanif P.W.11 vide memo Exh.P.E in presence of Ghulam Rasul P.W.6 and Muhammad Sharif P.W. (not examined).
' Both the sticks were not stained with blood.
' The accused were challaned after completion of investigation.
6. In support of its case prosecution examined 11 witnesses: in all. Fazal Ahmad P.W.8 and Barkat P.W.9 both injured were examined as eye-witnesses. Bashir Ahmad P.W. Another eye-witness was given up as unnecessary. The recoveries of crime weapons were witnessed by Muhammad Latif P.W.5 and Ghulam Rasul P.W.6. The medical evidence was furnished by Dr. Muhammad Saeed P.W.7 as given in detail above. The case was investigated by S.I. Tariq Hanif PW.11. The evidence of the rest of the witnesses was of formal nature.
' The accused Muhammad Anwar when examined under section 342, Cr.P.C. Denied the charge and pleaded innocence. It was stated by him that buffalo of his aunt Mst. Naseeban accused strayed in the field in question and damaged the Banna of the said field. She brought back the animal to their Haveli. Abdul Ghani deceased alongwith Barkat and Fazal. P.Ws. Chased her and hurled filthy abuses. He was present in Haveli and asked the accused not to abuse her. The accused gave Sota blow to Mst. Naseeban. Abdul Ghani also gave Sota blow to him, but he warded off the blow. Abdul Ghani then pounced upon him and gave injuries to him. He, therefore, in exercise of his right of self-defence gave solitary blow to Abdul Ghani. The remaining accused denied their presence at the spot. The accused did not lead any evidence in defence.
' The learned trial Judge came to the conclusion that there was bad blood between the parties and in any case motive, in this case, was of secondary importance. He placed reliance on the evidence of the two eye-witnesses and recoveries of sticks and convicted the appellants and their co- accused as stated above.
7. It is contended on behalf of the appellants that Abdul Ghani deceased received only one injury and not two injuries as stated by the medical officer and the eye-witnesses. It was argued by the learned counsel that the swelling indicated under injury No,2 was not an independent injury but was due to injury No,1 on head of the deceased and secondly, that there was no previous enmity between the parties; that it was a sudden affair; that the occurrence was preceded by exchange of abuses between the parties and as such only an offence under section 304(1), P.P.C. Could be said to have been made out against the appellants. The learned counsel for the complainant and the state controverted the contentions on behalf of the appellants.
8. Abdul Ghafoor alias Zahoor accused is father of Muhammad Anwar accused. Nazir Ahmad accused was nephew of Ghafoor accused. Mst. Naseeban accused is maternal aunt of Anwar accused. She was wife of brother of Nazir accused.
' Fazal Ahmad P.W.8, Barkat P.W.9 and Bashir Ahmad given up P.W. Were brothers of Abdul Ghani deceased.
' The parties did not have any previous enmity. It is in evidence of Muhammad Siddique Patwari P.W.3 that there was a public path towards the South of the Haveli of accused, which is owned by Mst. Barkatey mother of Abdul Ghafoor accused. He admitted in cross-examination that flood water was flowing through the public path. The prosecution case is that the accused had cut the Banna of their adjoining land as a result of which the flood water started flowing in the wheat crop standing in the said field. It was stated by Fazal Ahmad P.W.8 that the Haveli of the accused was adjacent to their land; they reached the spot and tried to persuade the accused not to damage their wheat crop and that an altercation ensued between them and they exchanged abuses. It was admitted by Barkat Ali P.W.9 that "the cut made by the accused persons remained intact till the arrival of the Thanedar and also the draftsman. Some body had demolished the Bunna of our wheat crop even during the night time". Fazal Ahmad P.W.8 admitted that the exchange of abuses lasted for about 3/4 minutes. He further admitted that their house was about 2 Killas from the spot; that they received information while in their Haveli about the cut of their Banna by accused. On a perusal of the statements of these two witnesses it appears that there was flood in Deg Nala; that the flood water started flowing in the public path which adjoined the house of the accused; that the Banna of the wheat crop field of the complainant was damaged by some one during night prior to the present occurrence as well; that the flood water started flowing in the wheat field of the deceased as a result of which there was an altercation and exchange of abuses between the parties during which Abdul Ghani deceased and the two eye-witnesses received injuries. The occurrence took place without any premeditation. The occurrence took place on account of the flow of flood water on the public path which was likely to damage the adjoining house of the accused. The flood water also started flowing in the wheat crop field of the complainant, the bunna of which was broken by some unknown person during the previous night. Both the accused caused one injury each to the deceased. I am not prepared to agree with the learned counsel for the appellants that both the injuries were result of one blow. The accused did not repeat injuries to the deceased. The complainant party were aggrieved because of the flow of water in their field. They came all the way from their house and picked up quarrel with the accused thinking that the water was diverted in their field by the accused. As such the appellants cannot be held guilty of intentional murder of Abdul Ghani deceased.
9. The learned trial Judge held the two appellants guilty of offence under section 302/149, P.P.C. The remaining three accused were acquitted from the charge of murder. This means that according to the ,learned trial Judge, all the five accused did not have common object to murder the deceased nor did they form any unlawful assembly to achieve the said object. As such the conviction under section 148, P.P.C. And section 302 read with section 149, P.P.C. Could not have been recorded. The learned trial Judge does not seem to be clear in his mind about the legal position of sections 148 and 149, P.P.C.
10. As a result of above discussion the two appellants are acquftte from the charge under section 148, P.P.C. The conviction of th appellants is altered from section 302/149, P.P.C. To 304 (1)/34, P.P.C.
Abdul Ghafoor alias Zahoor and Muhammad Anwar accused appellant are sentenced to 10 years R.I. And fine of Rs,5,000 or in default year R.I. Each under section 304(1)/34, P.P.C. The entire fine recovered, will be paid as compensation to heirs of deceased. They ar also allowed benefit of section 382-B, Cr.P.C.
11. Subject to above modification this appeal fails and is accordingly dismissed.
12. In view of the above decision in appeal, the cbnnected criminal revision is dismissed in limine.