Faqir Muhammad 32, Muhammad Bakhsh 50, Bashir Ahmad 40, Muhammad Ismail 30 and Neka 32, have come up in appeal against the judgment; dated 13-2-1985 by Mr. Farrukh Latif, Additional Sessions Judge-II, Sahiwal. Faqir Muhammad and Muhammad Bakhsh appellants were sentenced to imprisonment for life and fine of Rs.5,000 or in default two years' R.I. Under section 302/149, P. P. C.
They were ordered to pay Rs.5,000 as compensation under section 544-A, Cr.P.C., to heirs of Faiz Muhammad deceased and in default six months' R.1. They both were sentenced to two years' R.I.
Under section 148, P.P.C.
Bashir Ahmad, Muhammad Ismail and Neka accused were acquitted from the charge under sections 302/149 and 307/149, P.P.C. They were sentenced to one years' R.I. Under section 323/149, P.P.C. And to two years R.I. Under section 148, P.P.C. It was ordered that all the sentences of imprisonment will run concurrently.
One Ghulam Muhammad filed Criminal Revision No.85 of 1985 for enhancement of sentence of the accused which was ordered to be heard alongwith the appeal. This judgment will dispose of both these matters together.
2. The occurrence in this case took place on 15-3-1981, at 12-00 noon in Square No. 45 belonging to the accused in Chak No. 56/12-L, about seven miles from P.S. Ghaziabad, District Sahiwal. The F.I.R.
Exh. P.N. Was recorded at the Police Station by S.I. Ahmad Khan P.W. 11, at 4-00 p.m. On 15-3-1981, at the instance of Naseer Ahmad P.W. Who died before the commencement of trial and could not be examined as eye-witness. The F.I.R. Was proved by its scribe S.I. Ahmad Khan P.W. 11.
3. It was stated by Naseer Ahmad deceased complainant in his F.I.R. Exh. P.N. That he was a co- sharer of land in Square No. 63, in Chak No. 56/12-L, alongwith his brother-in-law Ahmad and other relatives. It was in their self-cultivation. The canal water irrigated their land. According to the fixed Warabandi their turn of water fell on every Sunday from 6-42 a.m. To 12-59 p.m. On 15-3-1981, his maternal nephew Faiz Muhammad was irrigating the land by the water of his turn. At about 12-00 noon, the flow of water in the Khal stopped. Faiz Muhammad who had a Kassi in his hand went towards Square No. 45 to see the cause for stoppage of flow of water. He reached the Pacca Thokar constructed by Muhammad Bakhsh, Faqir Muhammad, Ismail and Bashir accused. He noticed that the flow of water had been stopped by putting a wooden barrier (Phatta) in the Pacca Thokar. He was about to remove that Phatta when all of a sudden, Muhammad Bakhsh, Faqir Muhammad accused armed with hatchets, Ismail, Bashir Ahmad and Neka accused armed with sticks who were present near a trolley loaded with sugarcane, came there. They stopped Faiz Muhammad from removing the Phatta. This resulted in exchange of hot words which attracted Amir, Chiragh, Khan and Baqir P.Ws. Who were present in their own land. They all reached the spot of occurrence. Faiz Muhammad again tried to remove the obstruction. At this, Muhammad Bakhsh and Faqir Muhammad accused gave one blow each with hatchets on the head of Faiz Muhammad who fell down. Khan and Baqir P.Ws. Tried to intervene. They were given stick blows by Ismail, Bashir and Neka accused. Both of them also fell on the ground where after the accused ran away from the spot with their respective weapons. Many other residents of the village assembled at the spot.
The three injured were taken to Civil Hospital, Chichawatni where Faiz Muhammad died as a result of the injuries. Naseer Ahmad then went to the police station and lodged the F.I.R. Exh. P.N.
4. The police after registration of the case, undertook investigation.
The blood-stained earth was collected from the place of occurrence, vide memo. Exh. P.G./1 during inspection of the spot by S.I. Ahmad Khan on 16-3-1981.
The Karachi P. 12 (wooden Phatta) was taken in possession from the Khal, vide memo. Exh. P.H. On 16-3-1981.
Five pairs of shoes P. 10/1 to 5 and three Kassis P. 11/1 to s were found lying at the place of occurrence. These were taken ire possession during spot inspection, vide memo. Exh. P.1.
All the above recovery memos were prepared by S.I. Ahmad Khan and attested by Wali Muhammad P.W. 8 and Muhammad Ramzan P.W. (not examined).
On 16-3-1981, Faqir Muhammad accused at the time of his arrest, produced blood-stained hatchet P. 3 which was taken in possession by S.I. Ahmad Khan P.W. 11 in presence of Wali Muhammad P.W. 8 and Muhammad Ramzan (not examined),, At the same time, Neka accused at the time of his arrest, produced stick P.4 (not blood-stained) which was taken in possession by S.I. Ahmad Khan, vide memo. Exh. P. K in presence of same witnesses. At the same time, Muhammad Ismail accused, at the time of his arrest, produced Sota P. 5 (not blood-stained) which was taken in possession, vide memo. Exh. P.L. By S.I. Ahmad Khan P.W. 11 in presence of same witnesses. At the same time, Ahmad Khan S.I., at the time of arrest of Muhammad Bakhsh accused got removed Kurta P. 6, Chaddar P. 7 and Safa (Paghri) P.8 (all blood stained) from his person and took them in possession vide memo. Exh P.M. In presence of the dame witnesses.
The Kassi P.11/1, hatchet P. 3 and clothes P.6 to P.8 were found stained with human blood, vide report of Chemical Examiner Exh. P.S. And that of Serologist Exh. P.T.
S.I. Ahmad Khan also took in possession Parat Warabandi Exh. P.O. During investigation. The turn of water of accused is mentioned at Serial No. 26 and the turn of water of Naseer Ahmad complainant etc. Is mentioned at Serial No. 33 of this document.,
5. The dead body of Faiz Muhammad aged 18/19 years, after necessary formalities, was sent for post-mortem examination which was conducted by Dr. Allah Nawaz Brohi, on 15-3-1981, at 5-30 p.m. On external examination, the Medical Officer found two injuries on the dead body of Faiz Muhammad. Injury No. 1 was "a cut 15 c.m. x 5 c. m. x cutting bone and brain. The brain matter was coming out of the brain on right side of skull 3 c.m. Above right ear". Injury No. 22 was "a cut 20 c.m. x 3 c.m. x cutting bone and brain matter on top of skull. The brain matter was coming out of the skull." All other organs were healthy. These injuries had been caused by a sharp-edged weapon and were individually and collectively fatal. These injuries were sufficient to cause death in ordinary course of nature. The death was due to shock and haemorrhage. The probable time between injuries anti death was 2 to 3 hours and post-mortem was conducted in about 3 to 4 hours of death.
On 15-3-1981, at 4-00 p.m., the same Medical Officer examined Baqir P.W. And found nine blunt weapon simple injuries on his person which were of 2 to 4 hours duration. Injuries 1 to 4 were reddish bruises on the left scapula, left shoulder, back of chest. There were two abrasions on right shoulder and left thumb and three bruises on, the back of right chest, left iliac bone and left forearm.
At about the same time, the same Medical Officer examined Khan. Muhammad P .W. And found five blunt weapon simple injuries of about 2 to 4 hours duration on his person. These were on the anterior part of skull and left fore-arm.
On 17-3-1981, the same Medical Officer examined Muhammad Bakhsh accused. He found two lacerated crusted wounds of various dimensions on the left anterior side of skull and left side of scalp about 7 c.m. Above right ear. He also noted two abrasions on the back of right hand. These injuries were simple in nature caused by blunt weapon and of about 2 to 3 days duration.
The accused were challaned after completion of the investigation.
6. The prosecution during the trial examined 13 witnesses in all in support of its case. Baqir P.W. 9 and Khan P.W. 10 were examined as eye-witnesses. Chiragh and Amir, two eye-witnesses named in the F.I.R. Were given up as unnecessary. Naseer. Ahmad complainant died and as such, could not be examined during the trial. The recoveries from the place of occurrence and also from the accused were witnessed by Wali Muhammad P.W.
8. The evidence on Warabandi of canal water was furnished by Muhammad Aslam Canal Patwari P.W.
4. The medical evidence was furnished by Dr. Allah Nawaz Brohi P.W.
7. The case was investigated by S.I. Ahmad Khan P.W.
11. The evidence of the rest of the witnesses was of formal nature.
The accused when examined under section 342, Cr.P.C. Denied the charge and pleaded innocence.
They denied the recoveries of crime weapons from them. Excepting Muhammad Bakhsh, the remaining accused denied their presence at the spot at the time of occurrence. It was stated by Muhammad Bakhsh accused that on the day of occurrence, he, alongwith Muhammad Abbas, Muhammad Sharif, Muhammad Ali and Taj Muhammad was proceeding to Square No. 6 belonging to Raja Fayyaz Sarwar and on lease with them on a tractor trolley which was loaded with sugarcane to be planted there. When they passed from Square No. 45, which fell in the way, they found a cut on the western bank of the water-course towards north of the Pacca Nakka. On account of that cut, the earth which had been put by them in the water-course swept away resulting in lowering of the level of the Khal which they had raised by about 5/6 feet prior to the occurrence in order to bring their Killas 1 to 10 in Square No.45 under irrigation which by that time had not been brought under irrigation and cultivation. It was further stated by him that at that time Faiz deceased, Khan P.W., and Baqir P.W. Were present there with Kassis. He asked them as to why they had made cut in the water-course. They insisted to do so and abused him. He returned abuses. At this, Faiz Muhammad deceased gave him a Kassi blow on his head from its wrong side.
He gave another Kassi blow on his head. Baqir and Khan P.Ws. Also attacked him with Kassis. He warded of their blows by hand. His son Abbas, Muhammad Ali, Sharif and Taj Muhammad intervened and caused injuries to the deceased, Baqir P.W. And Khan P.W. In self-defence with sugar cane sticks and Kassis after snatching from the two witnesses.
The accused did not produce any evidence in defence.
The learned trial Judge rejected the defence version of the case. He placed reliance on the evidence of motive, recoveries and the two eye-witnesses and convicted the accused as stated above. It may here be observed that the learned Additional Sessions Judge did not seem to have a clear idea and concept of the provisions of sections 149 and 148, P.P.C. He acquitted Bashir Ahmad, Muhammad Ismail and Neka accused from the charge under sections 302/149 and 307/149, P.P.C.
But convicted them under section 148, P.P.C. He convicted only Faqir Muhammad and Muhammad Bakhsh accused under section 302/149, P.P.C. But in spite of that proceeded to convict all the five accused under section 148, P.P.C. Two accused were convicted under section 302/149, P.P.C. And three under section 323/149, P.P.C. If the finding of the learned trial Judge was that it was an unpremeditated occurrence which took place all of a sudden and the accused were responsible for their individual acts, then the conviction under section 148, P.P. C. Could not have been recorded and similarly, the provisions of section 149, P.P.C. Should not have been applied.
7. I have gone through the evidence on record with the assistance of the learned counsel for the appellants. I have also heard the learned counsel appearing on behalf of the appellants and the State at some length.
It is contended on behalf of the appellants that all the eye--witnesses were related to the deceased and therefore, not reliable; that the two eye-witnesses made material improvements in their statements during trial which make them unreliable witnesses; that the motive was with the complainant party to attack the accused who acted in exercise of the right of their self-defence and that the complainant party was aggressor. It was finally argued that even if the prosecution case is accepted, then also the two accused Faqir Muhammad and Muhammad Bakhsh could be held to be guilty under section 304(1), P.P.C. And not under section 302/34, P.P.C. The learned counsel for the State controverted the contentions on behalf of the appellants.
8. Khan P.W. 10 was a cousin of the deceased. Baqir P.W. Was married to a sister of Amir P.W., an uncle of Faiz Muhammad deceased. Naseer complainant was real brother of Amir P.W.
Muhammad Ramzan (given up P.W.) was a nephew of Amir given up P.W. Chiragh given up P.W.
Was a brother of Baqir P.W. It is correct that the two eye--witnesses were related to the deceased but firstly, they had no enmity against the accused to falsely implicate them in this case. Secondly, their presence at the time of occurrence is admitted by Muhammad Bakhsh accused. They both were injured during the occurrence. Muhammad Bakhsh accused admitted in his statement that they were injured during the occurrence though it was stated by him that they both were injured not by his co-accused but by his other companions namely, Abbas etc. They have, no doubt, made improvements in their statements during the trial but those improvements would not mean that they were not present during the occurrence. However, I am of the view that these improvements were of material nature and lend support to the defence version of the case.
A perusal of the F.I.R. Exh. P.N. Would show that the injuries on the person of Muhammad Bakhsh accused were neither mentioned nor, in any way, explained. It was stated in the F.I.R. That the accused Muhammad Bakhsh and his companions were present near the trolley having sugar- cane before they came to the Pacca Nakka to attack Faiz Muhammad deceased and the eye- witnesses Baqir P.W. 9 and Khan P.W. 10 in their statements before the police also narrated similar story as given in the F. I. R. However, in their statements during the trial, they denied the presence of the trolley at the place of occurrence and stated that Baqir P.W. Had given Sota blows on the person of Muhammad Bakhsh accused. In my view, these are material --improvements in the statements of these two witnesses. S.I. Ahmad Khan P.W. 11 who had investigated the case, admitted in cross-examination that Square No. 45 which was adjacent to the Khal, was on higher level from the ground level and that it was not under cultivation. He further admitted that the water-course had been cut from near Pacca Thokar towards its west It was stated by him that he did not see any water in Square No. 45 nor was it mentioned by him in his inspection note that any piece of land in Square No. 45 had been irrigated. He stated that he did not see any tractor trolley at the place of occurrence during inspection of the spot though signs of tractor trolley were noted by him. He further admitted that, according to his inspection note, all the eye-witnesses had reached the spot on the alarm of Faiz Muhammad deceased from Kalla No. 2 of Square No. 63 which was about 285 Karams (about 2-- furlongs) from the place of occurrence. He admitted that the accused had appeared before him on his first visit to the spot on the jay following the day of occurrence and that the first version of the occurrence before him by Muhammad Bakhsh accused was that he had found a cut on Western bank of the Khal near Pacca Thokar on account of which the occurrence started. He admitted that many persons appeared in support of the version of the accused. A perusal of the evidence would, therefore, show that the prosecution witnesses at the initial stage of the investigation admitted the presence of tractor trolley loaded with sugar-cane near the place of occurrence and secondly, they did not disclose the injuries on Muhammad Bakhsh accused received by him during the occurrence. The defence version is that Muhammad Rakhsh and others were proceeding on a tractor trolley. The presence of tractor trolley was admitted by these witnesses in their statements before the police and its presence was mentioned even in the F.I.R. This fact, therefore, lends support to the defence version that Muhammad Bakhsh accused and others were proceeding on a tractor trolley at the time of occurrence and they did not reach the spot with an initial intention to commit the murder of Faiz Muhammad or to assault the two eye-witnesses. It is in evidence that Square No. 45 was on the eastern side of the Khal and not under cultivation. It was Banjar Qadeem. It is also in evidence that after cut in the Khal the water did not flow in Square No. 45 but the water started running on the western side of the Khal in Square No. 46 with which the accused had no concerti. If the accused had to stop the flow of water in the Khal for their own benefit, the water must have been diverted in Square No. 45 and not in Square No. 46. This was not done. This means that the accused did not obstruct the flow of water in the Khal. The water was flowing in the Khal since 6-00 a.m. Without any obstruction or objection by the accused. The occurrence took place at about 12-00 noon and it is, therefore, not clear as to why the accused should have obstructed the flow of water in the Khal. It is in evidence of Muhammad Aslam Canal Patwari P.W. 4 that land of Square No. 45 was not commanded $t the time of occurrence. He admitted that the accused had applied to the Canal Department for building a Pacca Nakka and for raising the level of the Khal to irrigate their land in Square No. 45. He admitted that the said application has since been accepted. He further admitted that the complainant party had filed an appeal against the sanction of Nakka to the Divisional Canal Officer which was rejected. It was admitted by Wali Muhammad P.W. 8 who was an independent witness that a Pacca Nakka had been constructed by the accused at the corner of Killas 1, and 10 of Square No. 45 one month prior to the occurrence. Baqir P.W.9 in cross-examination stated that the blockade had been constructed by the accused 3 or 4 days before the occurrence and that they had not dissuaded the accused from constructing this blockade because they did not come to know of it. He admitted that the fight took place in Square No. 45 which belonged to the accused and which they had purchased about one year before the occurrence. It, therefore, appears that the Pacca Nakka was constructed by the accused a few days before the occurrence to the annoyance of the complainant who tried to damage the Nakka and also the Khata, the level of which had been raised by the accused. This was objected to by the accused who happened to pass on a tractor-- trolley loaded with sugar-cane and this resulted in the present occurrence. It was the complainant party who in fact were the aggressors. They had a motive to demolish the Pacca Nakka and also to damage the Khaal, the level of which had been raised to a height of 4/5 feet. The occurrence took place in the land of the accused which means that the complainant party was trespasser in the said land. The accused, therefore, all of a sudden, in order to defend their person and their property, caused injuries to Faiz Muhammad deceased and the two eye-witnesses. The accused faced the ugly situation all of a sudden when they were proceeding on their tractor-trolley to Square No. 6.
They, therefore, did not have either common intention or common object to form an unlawful assembly or to commit the murder of Faiz Muhammad or to make murderous assault on the two eye-witnesses. The complainant party was also armed with Kassis which were lethal weapons. The accused Faqir Muhammad and Muhammad Bakhsh do not seem to have been armed with hatchets. It appears that they were also having Kassis in their hands because the dimensions of the two injuries received by Faiz Muhammad deceased would show that those injuries could not be caused by a hatchet. Length and width of the injuries and the damage found to have been caused clearly indicate that the two injuries were caused with heavy weapons having blades of bigger size which could be Kassis. They both gave one injury each to Faiz Muhammad deceased. All the accused were attacked by the complainant party. Only Muhammad Bakhsh accused received injuries at the hands of the complainant party. Faqir Muhammad and Muhammad Bakhsh, who as held above, were attacked by the complainant party though had the right of self-defence but it seems that they exceeded the said right by inflicting severe blows on the head of the deceased.
The other accused only caused simple injuries to Khan Muhammad and Baqir P.Ws. They did not cause any injury to the deceased. The above view finds support from another fact proved on record of this case. Baqir P.W. 9 stated that he reached the place of occurrence on hearing alarm when he was present in Square No. 58, about 4/5 acres from the place of occurrence. In his statement before the police with which he was confronted, he had stated that he alongwith the P.Ws. Was present in Square No. 63 and reached the spot on hearing the alarm. He made a change in his statement during the trial and shifted his presence from Square No. 63 to Square No. 58 before the hearing of alarm from the place of occurrence. Khan P.W. 10 stated that he was present in Square No. 63 when he heard the alarm and went to the place of occurrence. S.I. Ahmad Khan P.W. 11 stated that according to his inspection note, all the eye-witnesses reached the spot on the alarm of Faiz Muhammad deceased from Kills. No. 2 of Square No. 63 which was 285 Karams away from the spot. In the site plan Exh. P.B., point No. 4 indicates the place where all the witnesses and the complainant were present before the occurrence. This point was 285 Karams (about 21 furlongs) from the place of occurrence. Point No. 3 indicates the presence of the eye-witnesses at the time of occurrence. Point No. 2 is the place where Baqir and Khan Muhammad P.Ws. Had reached and were injured during the occurrence. It is, therefore, clear that all the eye-witnesses and the complainant were present at a distance of 285 Karams when they heard alarm of Faiz Muhammad deceased. In .My view, firstly it was not possible for the eye-witnesses to hear alarm from a distance of 285 Karams (21 furlongs) and secondly, the occurrence must have ended by the time these witnesses were able to reach the place of occurrence. I am, therefore, clear in my mind that the prosecution story that the witnesses reached the place of occurrence from a distance of 285 Karams after hearing of the alarm was not correct. It appears that Faiz Muhammad deceased, Beqir P. W. And Khan P. W. Together went to the Pacca Nakka armed with Kassis to damage the Nakka and the Khal prepared by the accused which resulted in the present occurrence. In view of the above discussion, I hold that Faqir Muhammad and Muhammad Bakhsh accused are not guilty under section 302/34, P.P.C. They are, therefore, acquitted from the said charge and instead convicted under section 304(1), 'P.P.C. They both are sentenced to 10 years' R.I. And fine of Rs.5,000 or in default two years R.I. Each. The entire amount of fine, if recovered, will be paid as compensation to heirs of Faiz Muhammad deceased. Both these accused are acquitted from the charge under section 148. P.P.C. They will be allowed benefit of section 382-B, Cr.P.C.
Bashir Ahmad, Muhammad Ismail and Neka accused were acquitted by the trial Court from the charge under section 302/307, P.P.C. In view of the above discussion, they are acquitted from the charge under section 148, P.P.C. Their conviction under section 323, P.P.C., is maintained. They were arrested on 16-3-1981 and were allowed bail after two months by the trial Court. They were admitted to bail after suspension of their sentence, vide order of this Court, dated 23-2-1985. This means that they remained in prison for about two months and ten days during this case. The occurrence took place about five years earlier. I, therefore, maintaining their conviction under section 323, P.P.C. Reduce their sentence to one already undergone by them. They are on bail. Their bail bonds and sureties shall stand discharged.
9. No one appeared on behalf of the complainant in Criminal Revision No. 85 of 1985. In view of the above decision in the appeal, this revision is dismissed in limine.