' The prosecution case as disclosed in the F.I.R. In brief is that the lands of Najeeb Ullah complainant and Muhammad Akram accused adjoined each other and only a water channel intervened. There were Sheesham trees in the said water channel which admittedly is owned and used by both the parties. On 10-11-1984 at about Rotiwela Najeeb Ullah complainant alongwith his uncle Sher Muhammad deceased and Tanveer Ahmad P.W. Went to their land and saw Muhammad Akram and Muhammad Aslam accused cutting a tree. Sher Muhammad deceased asked Akram accused that the tree being joint should not be cut without a decision by the Punchaiat. Muhammad Akram did not agree claiming the tree as belonging to him and continued its cutting from roots with a Kassi. Sher Muhammad tried to intervene. Akram gave Kassi blow to. Sher Muhammad from blunt side which fell on his left leg. Akram tried to give second Kassi blow to Sher Muhammad but in the meanwhile, Najeeb Ullah complainant caught him. At this Muhammad Akram took out a Chhuri which he had tied with his leg and gave a blow on the left flank of Sher Muhammad who fell down.
Tanveer P.W. Tried to save his father. He was given Danda blow by Aslam on left ankle. Akram gave a Chhuri blow on the left flank of Tanveer P.W. Najeeb Ullah caught Muhammad Akram to rescue Tanveer P.W. Both the accused pushed him and ran away from the spot. The occurrence was witnessed by Muhammad Sharif and Muhammad Tufail as well. Sher Muhammad died at the spot.
Najeeb Ullah reported the matter at Police Station Khurianwala about six miles from the place of occurrence on the same day at 12-30 p.m.
2. The police inspected the spot. On 10-11-1985 Tanveer Ahmad P.W. Produced Danda P.4 which had been abandoned by Aslam accused at the place of occurrence before Muhammad Khan S.H.O.
P.W.1 who took the same in possession vide memo. Exh. P.G. Attested by Tanveer Ahmad P.W.8 and Fazal Muhammad not examined. Fazal Muhammad P.W. (not examined) produced Kassi P.5, abandoned at the place of occurrence by Akram accused, before the police who took the same in possession vide memo. Exh. P.H. Attested by him and Tanveer P.W.8. On 15-11-1984 Akram accused while in police custody led to the recovery of blood-stained Chhuri. P.7 vide memo. Exh. P.M. In presence of Muhammad Khan S.H.O. P.W.10 and Muhammad Sharif and Ghulam Hussain P.Ws., both not examined. The post-mortem was conducted by Dr. Muhammad Riaz All P.W.3 on 11-11-1984, at 7-30 a.m. He found a stab wound 3.5 c.m. x 1 c.m. Going deep on the left side of chest. He also found various abrasions on knee joint and nose. The death had occurred as a result of injury No,1 by sharp-edged weapon which was sufficient to cause death in the ordinary course of nature. P.W. 4 Dr. Muhammad Shafiqur Rehman on 10-11-1984 medically examined Tanveer Ahmed P.W. And found an incised wound on left iliac fosa and a contused swelling on left ankle. Both the injuries were fresh and simple in nature.
' The prosecution during trial examined 10 witnesses in all. The medical evidence has been given in detail above. The ocular account was furnished by Najeeb Ullah P.W.7, a nephew of, the deceased, Tanveer Ahmed P.W.8, son of the deceased and Muhammad Tufail P W.9, not related. The recoveries from place of occurrence were witnessed by Tanveer Ahmad P W.8. The accused Muhammad Aslam denied t le charge and pleaded innocence. He denied his presence at the spot at the time of occurrence and attributed this case against him on account of his enmity with Ch. Farman Ali Advocate. It was stated by him that his real uncle and other relatives were challaned for the murder of a son of Ch. Farman All Advocate. Akram accused in his statement admitted his presence at the time of occurrence. He pleaded that he was removing earth from the roots of Sheesham tree which were in his Kills 23. The deceased and his son came there. They started snatching his Kassi in order to restrain him from removing the earth. A scuffle arose during which a pointed corner of Kassi struck the deceased who fell down and expired. The accused uid not produce any evidence in defence.
3. The learned trial Judge acquitted the accused from the charge under section 302/34, P.P.C.
Muhammad Aslam accused was sentenced to six monthsvR.I. And a fine of Rs, 500 or in default one month. R.I. Under section 323, P.P.C. Muhammad Akram accused was sentenced to 7 years R.I. And fine of Rs, 5,000 or in default one year R.I. Under section 304, (Part II), P.P.C. And to suffer two years, R.I. And fine of Rs, 1,000 or in default, four months, R.I. Under section 308, P.P.C. The sentences were ordered to run concurrently. Both the accused were allowed benefit of section 382-B, Cr,P.C. The office had reported that both the accused have not filed any appeal to challenge their conviction and sentence.
4. The complainant Najeeb Ullah has come up in revision with a prayer that the acquittal of accused under section 302/34, P.P.C. Was illegal and as such the case against them be remanded for fresh trial according to law. I have gone through the evidence on record and also heard the learned counsel for the petitioner at some length... The reasons given by the learned trial Judge in para. 33 of the judgment for acquitting the accused from the charge under section 302, P.P.C. Are firstly, that it was a sudden affair, secondly that the parties did not have previous enmity between themselves. Thirdly, that the fight arose between the parties ever a petty dispute 'of Sheesham tree.
Fourthly, that Akram accused gave a single blow with Chhuri and did not repeat blow. Fifthly, that the fight took place when Sher Muhammad deceased physically intervened the cutting of the roots of Sheesham tree by Akram accused and tried to snatch Kasai which show some provocation on the part of the deceased. He accordingly convicted Akram accused under section 304 (Part II), P.P.C.
5. The only contention on behalf of the complainant was that as Akram accused had concealed a Chhuri by tying the same with his leg, therefore, it would mean that he had come prepared for the murder. It was, therefore, argued that the acquittal from the charge under section 302, P.P.C. Was not legal. I have considered the above contention in the light of the evidence on the record. It is prosecution's own caseA that the tree was jointly owned by the parties. According to the prosecution _Akram accused was cutting the tree from its roots but according to Muhammad'
Akram accused he was removing earth from the roots of Sheesham tree. This is, however, admitted by the complainant that Akram was using Kasai when they arrived at the place of occurrence. In my view the defence version, that Akram was not cutting the roots but only removing the earth, appears correct because roots cannot be cut by a Kassi. If the accused had intended to cut the roots of the tree he must have used hatchet instead of Kassi. The blade of Kasai is not that hard with which wood could be cut. Akram accused gave blows to Sher Muhammad deceased only after he physically intervene, and tried to stop him from clearing earth from the roots of the tree.
There is no evidence or circumstance to indicate that Akram was trying to cut the tree itself. Sher Muhammad deceased, therefore, had no right to intervene and stop Akram accused from removing earth fromE the roots of the tree. Even if Akram was trying to cut the joint tree then also Sher Muhammad should have taken resort to legal course instead of physical intervention. The parties did not have any previou enmity between themselves. The trouble started on account of the intervention of Sher Muhammad deceased which could have been avoided by him. The dimension of the stab wound on the dead body of Sher Muhammad was 3.5 c. m. x 1 c.. m. x deep on left side of chest. On opening the thorax, left side of pleura and left lung were found injured and the cavity was full of blood. The left ventricle was injured. The heart was empty. Rest of the organs were healthy. The death, in the opinion of the Medical. Officer, was due to shock, haemorrhage and injury to vital organ. In cross-examination, the Medical Officer admitted that "if two persons grapple with each other and try to snatch Kassi from each other, then injury No,1 can be caused from any edge (upper two corners of Kassi)." It is, therefore, clear from the medical evidence that the possibility of injury No,1 having been caused by a corner of sharp edge of Kassi cannot be ruled out.
It was vehemently contended by the learned counsel that Muhammad Akram had concealed his Chhuri which clearly indicated his intention to murder. This contention has no force. Firstly, it is doubtful whether Akram had in fact concealed a Chhuri by tying the same with his leg; secondly, it is also doubtful that injury No,1 on the person of Sher Muhammad was caused by a Chhuri and thirdly, it is prosecution's own case that Muhammad Akram was already present at the place of occurrence when the deceased and his companion went there. There is nothing to show that Muhammad Akram knew about the possible arrival of the complainant party at the spot. On overall assessm ent of the evidence on record, the defence version appears more probable.'
' Danda P.4 was not stained with human blood and is, therefore, of no help to the prosecution's case.-Kassi P.5 was found lying at the place of occurrence. It was picked up by Fazal Muhammad who produced the same before the investigating officer. Faze]. Muhammad was not examined during the trial as witness. There is nothing to show whether this Kassi was stained with blood or not. Chhuri. P.7 was recovered after about 4 days of the occurrence. Both the recovery witnesses were not examined by the prosecution as witnesses during the trial. I am, therefore, not prepared to accept the recovery of Chhuri P.7. In my view, both the accused were rightly acquitted from the charg under section 302/34, P.P.C. And instead convicted under section 304, (Part II), 308 and 323, P.P.C. There is no merit in this petitio which is accordingly dismissed in limine. in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.