Muhammad Ashraf (20) and his brother Asghar (18) were tried for the murder Abdur Razaq and for causing hurt to Fateh Muhammad. On 22 1-1984 Additional Sessions Judge, T.T. Singh convicted them under section 302134, P.P.C. And sentenced them to imprisonment for life with a fine of Rs.5,000 each in default to undergo one year's R.1. Further. For the injury to Fateh Muhammad, they were sentenced to one year's R.I. Each. Both sentences were ordered to run concurrently. The appeal of the convicts and the revision filed by Fateh Muhammad for the enhancement of sentence is before me.
2. About five years before the occurrence, Fateh Muhammad informant's brother Muhammad Yousaf shifted to Faisalabad. Their third brother Ghulam Muhammad, his sons Asghar and Ashraf occupied Yousaf's Ihata. Fateh Muhammad stopped them but the three did not listen to him, thereafter, they were not on speaking terms. On 1-9-1982 at about 6.30 a. m. Ashraf and Asghar, accused, started raising a construction on the village patch. Razaq deceased and his father Fateh Muhammad stopped them, upon which Asghar who was armed with a Gandasa and Ashraf with a knife attacked them. Ashraf inflicted a knife blow in the chest of Razaq and felled him. Thereafter.
Asghar gave three Gandasa blows to Razaq hitting him on his neck, waist and the left leg Fateh Muhammad, informant, went forward to rescue his son, just then, Ashraf inflicted a knife blow on his buttocks and Asghar gave a Gandasa blow on his back. On the alarm informant's son Muhammad Sadiq, Noor Muhammad and Islam appeared on the scene. They rescued the injured but the accused fled away. Razaq succumbed to his injuries on the spot.
3. P.W. 9 Muhammad Aslam. S.I. Was on patrol duty in the area of Chak No. 361/GB where he was informed about the occurrence in this case. The S.I. Then went to the place of occurrence and recorded statement Exh. P.B. Of P.W. Fateh Muhammad at 7.30 a.m. On the basis of which formal F.I.R. Exh. P.B./1 was registered at the police station After inspection of the spot the S.I. Prepared the necessary documents and sent the dead body for its post-mortem examination.
4. P.W. 8 Dr. Syed Shamshad Hussain, S.M.O. Tehsil Headquarter Hospital held the autopsy on the dead body of Razaq at 4.30 p.m. The same day and found four incised, wounds involving chest, back lower part of neck, left leg and the lumber region. In doctor's opinion death was due to shock and haemorrhage caused by injury No. 1. The rest of the injuries were found to be simple.
The same day, he examined P.W. Fateh Muhammad informant, and found an incised wound on his buttocks and another wound in the lumber region. Both injuries were simple caused by a sharp- edged weapon.
5. Accused were arrested on 7-9-1982 by Rana Shahid Ahmad S.I. P.W.
10. Ashraf led to the recovery of blood-stained knife P. 2 from his residential room where it was lying in an almirah. It was made into a sealed parcel, vide memo. P.W. Attested by P.W. 4 Sher Ahmad. P.W. 10 Rana Shahid Ahmad and Arshad Iqbal who was given up as unnecessary. The same day, Muhammad Asghar got recovered Gandasa P. 3 from a room in his house, it was made into a sealed parcel, vide memo.
Exh. P.E. Attested by the same aforesaid witnesses. Both weapons were found to be stained with blood. After completing the investigation, the accused were sent up for trial.
6. Both accused denied guilt and said that the two prosecution witnesses were closely related to each other and that P.W. Islam was under their influence. The only disinterested eye-witness was given up. They admitted that five years back they took possession of the Ihata of Muhammad Yusuf who had shifted to Faisalabad. They added that for this reason the prosecution witnesses were inimical towards them. According to them, their father wanted to include the Verandah just outside the Ihata of their uncle Yusuf as it was attached to their Ihata. Therefore, they had engaged two labourers who fell out with the complainant party, hence the present occurrence. The accused led no evidence in defence.
7. Trial Court came to the conclusion that there was no substitution, it, therefore, disbelieved the defence version and came to the conclusion that the prosecution satisfactorily proved the motive.
Relying on the evidence of the eye-witnesses, it convicted them.
8. Criticizing the finding, learned counsel for the appellants contended that the appellants were admittedly in possession of the Ihata and the premises left by their uncle Yusuf five years back and that there was no evidence to show that the accused had encroached the village thoroughfare.
They were entitled to make any construction over the Verandah b6longing to their uncle Yusuf who had left his property to them. The complainant party was not justified in checking them and in doing so they were the aggressor. In the end, it was argued that at the most, it was a case of a sudden fight and would be covered by Exception IV to section 300 , P.P.C. I have considered this aspect of the case. Admittedly, there is no construction shown by the Patwari on the thoroughfare or explained by the Investigating Officer which could have extended a right to any village proprietor to stop the accused from doing so, therefore, the complainant party had no right to stop the accused from making any alteration or construction within the premises in their possession. On the other hand I find that except for the altercation there is nothing in the evidence to show that there was use of criminal force against the accused by the complainant party. This is supported by the fact that none of the accused is injured. It appears that after altercation when the passions were high; accused opened the attack. Abdur Razaq was attacked by Ashraf appellant with knife causing injuries to him in the chest and other parts of his body. He also stabbed Fateh Muhammad in the buttocks. On a reconstruction of the scene of crime, it follows that Ashraf took undue advantage of the unarmed adversary and acted in a cruel manner by hitting the deceased on the vital part of his body. The fact that he 1A was dragged into a situation' like the one in this case for no fault of his was per se not enough to bring the case within the Exception, the maximum benefit of it has already been extended to him by not awarding the capital sentence. He is liable under section 302, P.P.C. His appeal fails and the same is dismissed.
9. In so far as Muhammad Asghar is concerned, according to the medical evidence, the injuries caused by him are simple in nature, although, he is, alleged to have been carrying a Gandasa. The nature of the injuries did not show that the weapon had been used against the victim because they are incised abrasions which in all probability could be caused with a knife. I, therefore, give him the benefit of doubt and accept his appeal and acquit him of the charge. He shall be released forthwith if not required in any other case.