ALI HUSSAIN QAZILBASH, J.--This is an appeal by leave from the order of the Lahore High Court, dated 3-12-1980, whereby the appeal of Mansha against his conviction under section 302 P.P.C. And sentence of death has been dismissed.
2. The facts given are that seven years prior to the occurrence, the two deceased, namely, Muhammad Rafiq and Muhammad Sharif, and their brothers Idrees and Abdul Khaliq alongwith Nazir, father of Ghulam Rasool complainant, purchased two squares of land; situate at a distance of two miles from village Beharwal. This land was cultivated by the above named persons alongwith one Mehand. Adjoining land belonged to Mr. Muhammad Anwar, Advocate, and was in cultivating possession of Mansha appellant and his brother Muhammad Hanif, the acquitted accused. The immediate cause of occurrence was a dispute over turn of water. The turn of water of the complainant party started at 11 a.m. On each Tuesday and ended at 9 a.m. The following day.
The accused used to take their turn of water thereafter. On the 13th of February, 1974 at about 8 a.m., Mansha appellant armed with a dang and Muhammad Hanif, the acquitted accused, armed with a kassi came to divert the water to their land. Muhammad Hanif started diverting the water to which Muhammad Sharif deceased objected and on this Mansha gave him two dang blows on his back. Muhammad Rafiq deceased snatched the kassi from Muhammad Hanif and inflicted blows to Mansha with its wrong side. Ghulam Rasool complainant, Rashid P.W. And Idrees (not produced), who were crushing sugarcane in another field, rushed to the spot and on seeing them both the accused ran away to the dhari of one Inayat Maikan. The complainant, Rashid and Idrees then returned to the crushing machine and both the deceased continued irrigating their fields. After about half an hour, Mansha and Muhammad Hanif accused armed with guns re-appeared at the scene, threw a challenge to the deceased and simultaneously Mansha fired at Muhammad Sharif with his gun which hit him on his chest, whereas Muhammad Hanif fired at Muhammad Rafiq hitting him on his left thigh, as a result of which both of them fell on the ground. The cries attracted the complainant, Rashid and Idrees towards the place of occurrence who were also fired upon ineffectively by Mansha. The accused then made their escape good towards village Bhoonike alongwith their weapons. Muhammad Sharif and Muhammad Rafiq succumbed to their injuries at the spot. The motive given in the F.I. R. Is that four years prior to the occurrence, Muhammad Ramzan, brother of Mansha, was murdered and Mansha had brought the dead body of Muhammad Ramzan to the dera of the deceased but they did not allow him to place it there. It is alleged that the accused harboured grudge against the deceased on that score.
3. The report of the occurrence was lodged by Ghulam Rasool (PW 9) at the police station situate at a distance of six miles at about 1-30 p.m. This report was recorded by Muhammad Bashir A.S.I.
(PW 11). On his visit to the spot, he found the two dead bodies lying there and started investigation in the case. He found three empty cartridges of .12 bore (Exs.P,6 P.7 and P.8) and also Kassi (Ex.P.9) at the place of occurrence and took them into possession He also got prepared the site plan through Bashir Ahmad Patwari (PW 1). The rest of the investigation was conducted by Noor Ahmad Inspector (PW 12). He took into possession the clothes of the deceased and phials containing pellets. This P.W. Arrested both the accused on 17-2-1974. An unlicensed single barrel gun and two live cartridges were recovered from the possession of Mansha accused. An unlicensed single barrel gun and two live cartridges were also recovered from the possession of Muhammad Hanif accused. Both the guns and the cartridges were taken into possession through relevant memos.
The two guns alongwith the empties were sent to the Fire-arms Expert for his opinion. According to Ex.P.V., the Firearms Expert has opined that one empty C3 has been fired from the gun allegedly recovered from Muhammad Hanif and two empties C1 and C2 have been fired from the single barrel shotgun recovered from the possession of Mansha appellant.
4. On the 14th of February 1974, Dr. Nasim Ahmad Qureshi (PW 6) conducted post-mortem examination on the dead bodies of Muhammad Sharif and Muhammad Rafiq deceased. The injuries on the two dead bodies given by the doctor have been recorded by the two Courts in their judgments in detail and need not be repeated
5. After the completion of the investigation, both the accused were put to trial, where the prosecution produced Ghulam Rasool (PW 9) and Rashid (PW 10) who have furnished the eye version account of the incident, corroboration was also sought from the recovery of the weapons of offence and the report of the Fire-arms Expert. Muhammad Hanif, the acquitted accused, in his statement under section 342, Cr. P.C. Denied the occurrence as well as the recovery of the gun fire his possession. Mansha appellant in his statement under section 342, Cr. P. C. Denied the earlier incident and pleaded not guilty to the charge. His version of the occurrence is: "The water turn of the complainant party ended at 9 A.M, on each Wednesday and the complainant party used to have their time of Niqal for one hour. Therefore their turn ended at 10 A.M. And not at 9 A.M. Sharif and Rafiq deceased were watering their land at 10 A. M. When I went to them and asked them to have my turn on which they objected. The altercation took place between them and me. Both the deceased were armed with Kassies. Rafiq gave me 2 Kassi blows and Sharif deceased tried to assault me also. I felt apprehension to my life Therefore, I fired my gun at Sharif and Rafiq in self-defence and in defence of my property (water)."
The learned trial Court after examining the evidence totally rejected the eye version account of the incident, it also did not accept the recovery of gun Ex.P.12 from the possession of Muhammad Hanif and his participation in the occurrence and thus acquitted him of the charge. However, relying on the statement of Mansha appellant, the learned trial Court, vide its judgment dated 2-7-1978, came to the conclusion that both the deceased were armed with kassis and Mansha was injured by Muhammad Rafiq deceased. Thus apprehending death or grievous hurt by the appellant at the hands of the deceased, he (the appellant) was justified in causing the death of Muhammad Rafiq deceased in exercise of right of self-defence, but held that no such right was available to the appellant in respect of Muhammad Sharif deceased. It, therefore, held the appellant guilty of the murder of Muhammad Sharif, convicted him under section 302 P.P.C. And sentenced him accordingly, but acquitted him of the charge relating to the murder of Muhammad Rafiq deceased. On appeal, the learned Judges of the High Court after examining the entire evidence of the prosecution threadbare came to a different conclusion altogether by observing: "The evidence of the two eyewitnesses regarding the main occurrence was disbelieved mainly on two grounds, firstly that the places from where they had seen the occurrence were not shown in the site plan, and secondly that the doctor found blackening on the margins of the wounds which showed that the fires were shot from a distance of six feet but the eyewitnesses stated that the fires were shot from a distance of five to six Karams. Since the eyewitnesses saw the occurrence from some distance, they were not expected to be precise about the distance from which the fires had been shot at the deceased persons. The omission to show the places in the site plan from where the eyewitnesses saw the occurrence, was not at all a sufficient ground for rejecting their evidence.
Both the eyewitnesses had joint cultivation with the deceased persons. It is in the statement of the complainant that his father Nazir, Mahand father of Rashid P.W. And the deceased persons were co-owners and had joint cultivation. The presence of Ghulam Rasul complainant and Rashid P.W.
At the crushing machine near the place of occurrence was, therefore, quite natural. They are, no doubt, related to the deceased persons but mere relationship is no ground to reject their evidence, particularly when they had no motive for false implication. It is admitted on all hands that Mansha appellant sustained injuries at the hands of Rafiq deceased. This fact goes a long way to show that first incident did take place and he sustained injuries during that incident. If the entire occurrence had taken place at one and the same time when Mansha appellant armed with a gun had gone to divert the water as held by the trial Judge, then the deceased persons even if they had Kassis with them would not have taken the courage to go near him in order to attack him. This circumstance lends substantial support to the view that having come out worse in the first incident and effectively resisted in their attempt to divert the water, the accused persons left the spot and re- appeared at the scene armed with guns in order to take revenge. It is surprising that the trial Judge took no notice of this aspect although while convicting the appellant for the murder of Sharif deceased he had observed in the impugned judgment that after the murder of Rafiq the appellant could not expect any apprehension from Sharif deceased though he was armed with a Kassi because he "could not dare to attack him after the murder of Rafiq deceased". If Sharif deceased being armed with a Kassi "could not dare to attack him", how the deceased persons could take up the courage to attack the appellant if he had come to the spot to divert the water armed with a gun from the very beginning. We are, therefore, of the view that the murders were committed to take revenge of the earlier incident and there is no reasonable possibility of the defence version being true." and thus maintained the conviction and confirmed the sentence of the appellant vide their judgment dated 3-12-1980.
6. We have given our careful consideration to the arguments advanced by the learned counsel for the appellant in the light of the judgments of the Courts below and we find that there is no merit in the present appeal. It is a daylight occurrence in which two murders have taken place, the report of which has been promptly made. The eye-account of the incident has come from witnesses who though are related to the deceased have no enmity with the appellant, it, therefore, cannot be said that the appellant has been implicated in the commission of the crime falsely and also no material has been brought on the record to create any doubt about the presence of these witnesses at the spot. Both these witnesses have stuck to the F.I.R. And are consistent in accusing the appellant for committing the murder of Muhammad Sharif deceased. The medical evidence, the recovery of the shotgun, the two crime empties and the opinion of the Arms Expert further corroborate the ocular version that the deceased was fired at fatally by the appellant with a shotgun. The motive is yet anther circumstance which militates against the appellant. The charge against the appellant is thus proved to the hilt and his conviction under section 302 P.P.C. Is well-founded.
7. As for the quantum of sentence, we are of the view that it needs interference in that Mansha appellant though not examined by the doctor has stamps of injuries as per record. It seems that the dispute between the parties on the turn of irrigation assumed an ugly situation when the parties resorted to fight, in which the appellant received some injuries at the hands of the complainant party and Muhammad Sharif lost his life as a result of shot fired by Mansha appellant.
In this view of the matter, we reduce the sentence of Mansha appellant from death to one of imprisonment for life. We also enhance the fine from a sum of Rs.3,000 to Rs.15,000, which on recovery is to be paid to the heirs of Muhammad Sharif deceased. In default of payment of fine, the appellant is further to undergo one year's R.I. The benefit of section 382-B Cr.P.C. Is also allowed to the appellant.