Gulzar Ahmad (29), his two brothers Ahmad Yar (26) and Shaukat (25) and a relative Ahmad Din were tried by Additional Sessions Judge, Kasur, on charges under sections 302 and 307 read with section 34, P.P.C. And ultimately the said Court acquitted Ahmad Din giving him benefit of doubt and convicted the rest sentencing them to imprisonment for life and a fine of Rs.5,000 or in default to undergo 3 years' R.I. Each under section 302/34, P.P.C. And to one year's R.I. Each under section 323/34, P.P.C. The sentences were ordered to run concurrently and the amount of fine, if realized, was directed to be paid as compensation to the heirs of Noor Muhammad deceased. Feeling aggrieved thereby the convicts have preferred the instant appeal. No appeal or revision has been filed against the acquittal of Ahmad Din.
2. The occurrence had taken place in Khasra No. 111/1 of village Guruke, district Kasur, at about noon time, on 1-12-1984, wherein Noor Muhammad (deceased) was killed and his nephews Sarwar (P.W.8) and Saif (P.W.9) were injured. Report Exh. P.J. Of the incident was lodged by Bata (P.W. 7), a son of the deceased at village Sheikham, the next day, (2-12-1984) at 8 a.m. With Maqsood Ahmad, Inspector/S.H.O. (P.W. 12). Formal F.I.R. (Exh. P.J./1) was drawn at Police Station Sarai Mughal (2 miles away from the spot) by Muharrir Muhammad Iqbal (P.W. 4) on the basis of Exh. P.J.
3. The prosecution case as disclosed at the trial was that 8/9 months prior to the occurrence Bata complainant (P.W. 7) had purchased a piece of land in village Guruke from Muhammad A.I, father of the appellants for a sum of Rs.55,000 and had obtained its possession. Subsequently, the appellants by rescinding the bargain demanded that land back from him. The complainant did not agree to it. The appellants, therefore, threatened him that if he did not return the land then he would meet dire consequences. The complainant allegedly had sown wheat crop on a part of the aforesaid land. On the day of occurrence Bata complainant (P.W. 7), his cousins Sarwar (P.W. 8) and Saif (P.W. 9), were sitting in front of their house, and smoking Huqa while Noor Muhammad (deceased) was present in the wheat field about an acre away from them. In the meantime, Gulzar Ahmad, Ahmad Yar and Shaukat, appellants, armed with Dangs and Ahmad Din (since acquitted) brought bullocks with a plough there and started tilling the wheat field. Noor Muhammad (deceased) objected to it and stopped them from doing so by standing in front of the bullocks.
Meanwhile Sarwar, Saif P.Ws. And Bata complainant also reached there. At this, Ahmad Din (since acquitted) exhorted the appellants to finish Noor Muhammad (deceased) and pursuant to this Lalkara Ahmad Yar, appellant, inflicted a Dang blow on the right side of head of Noor Muhammad.
Gulzar, appellant inflicted a Dang blow on the back of his head, as a result of which Noor Muhammad fell down. Sarwar and Saif P.Ws. When attempted to rescue the deceased, were also injured by Shaukat and Ahmad Yar, appellants. Sarwar and Saif P.Ws. Then snatched Dang from Shaukat, appellant, and with it gave blows to Gulzar and Ahmad Yar, appellants. Mst. Shamim (real sister of the appellants), who reached the spot hearing the alarm, had been allegedly injured at the hands of her own brothers Gulzar and Shaukat appellants. Rashid and Hidayat P.Ws. Also arrived there and having seen them the appellants with their weapons decamped from the scene. Noor Muhammad was in precarious condition and was removed to Civil Hospital, Pattoki where he expired next morning due to injuries. Bata complainant (P.W. 7) then went for making F.I.R. And meeting Maqsood Ahmad, Inspector/S.H.O. (P.W. 12) in the way near village Sheikham reported the matter to him on 2-12-1984 at 8 a.m. Vide statement Exh. P.J.
4. Maqsood Ahmad, Inspector (P.W. 12) sent report Exh. P.J. To Police Station Sarai Mughal for registering the formal F.I.R. And himself went to Civil Hospital, Pattoki with the complainant. He prepared inquest report of the deceased and despatched the dead body to Civil Hospital, Chunian for post-- mortem examination under police escort. He then visited the spot and collected blood- stained earth from there. He arrested all the appellants on 7-12-1984 and recovered bang (P.3) from Gulzar appellant and Dang (P.4) from Ahmad Yar appellant on 12-2-1984. Dang (P. 5) was recovered from Shaukat appellant on 15-4-1984. They were seized under separate memos attested by Hidayat (P.W. 4) and the Investigating Officer (P.W. 12).
5. Dr. Muhammad Ashraf (P.W. 3) examined injured persons of both parties in the morning of 1-12- 1984. He noted two injuries, namely, a lacerated wound 3 c.m. x 1/2 c.m. x skin deep on the forehead and a contusion 6 x 1 c.m. On the back of right hand of Saif (P.W.) and 3 injuries i.e., a lacerated wound 1 x -- c.m. x skin deep on the back of upper part of the head, a contusion 12 x 4 c.m. On the back of right hand and an abrasion 4 x 2 c.m. On the back of chest of Sarwar P.W. These injuries were declared as simple, caused with blunt weapons within duration of 12 hours.
The doctor noted following two injuries on the person of Noor Muhammad, deceased, while he was alive but was in unconscious state.
(1)A lacerated wound 7 x 1/2 c.m. x skin deep right side of head above and behind the ear.
(2)Lacerated wound 4 x 1 c.m. x skin deep back of head.
From accused side, Ahmad Yar and Gulzar appellants and their sister Mst. Shahmim were medically examined by Dr. Muhammad Iqbal (P.W. 1) on 1-12-1984 at 2-45 p.m. Who noted five injuries on the person of Gulzar Ahmad which included two lacerated wounds on the head and right hand; 8 injuries on the person of Ahmad Yar which included two lacerated wounds on the head and 3 injuries on the person of Mst. Shahmim including a contused wound on the head. All these injuries were declared as simple, caused with blunt weapon within duration of 24 hours.
6. At the trial, prosecution examined 12 witnesses. Of them, Bata complainant (P.W. 7), Sarwar (P.W.
8) and Saif (P.W. 9) furnished eye-witness account. Hidayat (P.W. 11) deposed about the recovery of -weapons of offence effected from appellants and Inspector Maqsood Ahmad (P.W. 12) told about the investigation carried out by him besides the doctor who proved the injuries suffered by both the parties including injuries of the deceased as narrated above. In his statement under section 342, Cr. P.C. Ahmad Din denied his presence and participation in the occurrence but the remaining accused raised plea of self---defence. Gulzar explained that Ahmad Yar while going to his cattle- shed was attacked in the way by Noor Muhammad (deceased), Sarwar and Saif P.Ws. Whereupon he in order to rescue him caused injuries to Noor Muhammad (deceased) and then he and Shaukat had injured Saif and Sarwar P.Ws. In self---defence whereas their sister Mst. Shamim was injured by Sarwar and Saif P.Ws. They denied the recovery of Dangs from them. Regarding the motive it was stated that their father had sold land to Bata, complainant, who did not pay its full price and a balance of Rs.4,000 remains still to be paid, therefore, possession of land had not been delivered to Bata. Further stated that Muhammad Hussain (brother of deceased) had purchased land from Noor Muhammad Potter and that their father had filed a pre-emption suit against them which was resented by the complainant party and for these reasons they had been attacked. They did not, however, produce any defence evidence. Learned trial Court on consideration of the material on record doubted the participation of Ahmad Din and acquitted him. It has disbelieved the defence version and accepting the prosecution case convicted the appellants under section 302/34, P.P.C. It refrained from passing normal penalty of death on them on the ground that there did not exist previous enmity between the parties and because appellants are of young age.
7. It is contended that eye-witnesses are close relatives of the deceased who deliberately suppressed material facts and that the prosecution did not prove by producing revenue record that the land in dispute was in their possession or that they had sown wheat on it in the days of occurrence, therefore, it should be presumed that the appellants' plea of self-defence was correct.
As a last resort he submitted that since both the parties are injured, therefore, it seems to be a case of free fight but as none of the appellants repeated injury on the person of the deceased, the intention to kill on their part is negatived, hence the case falls under section 304 (Part II), P.P.C. And that Shaukat, appellant, who did not cause any injury to the deceased must be acquitted from the murder charge. Learned State counsel has, however, defended impugned order of conviction and sentence.
8. I have carefully considered the facts and circumstances of the case in the light of the arguments addressed by the learned counsel for the parties.
9. The occurrence is not denied by the appellants. Three persons of each party are injured. Noor Muhammad (deceased) Sarwar and Saif P.Ws. Suffered 7 injuries in all. Of them, two head injuries of the deceased were found as grievous. On the appellants' side, Gulzar Ahmad, Ahmad Yar and Mst. Shamim suffered 13 injuries, all simple in nature, but they included 4 lacerated wounds and one contused wound on their heads. According to the complainant the appellants had attacked them in order to take the possession of the disputed land forcibly while the defence story is that the complainant party was annoyed with them because they had not delivered the possession of the disputed land to them which had been purchased by Bata from their father, because the complainant had yet to pay part of its price to them and therefore they were attacked. It is strange that both the parties had not produced any documentary or other reliable evidence showing their possession on the disputed land. The occurrence took place at Khasra No. 111/1. Muhammad Siddiq, Patwari (P.W. 5) when asked as to who was in possession of this Khasra, stated that he could not tell it without consulting the record which he had not brought with him to Court. In the circumstances, there is no positive evidence to hold as to which of the two parties was in possession of the land on the relevant day, therefore, motive for the assault given by the complainant remains unproved. On the other hand, the complainant has admitted that the appellants were demanding more money from him towards price of the land. He further admitted that his uncle Muhammad Hussain had purchased some land from Noor Muhammad Potter and regarding that land the father of the appellants had filed a suit for pre-emption which was pending during the days of occurrence. All these facts show that the parties had strained relations and the happening of a trivial incident between them was sufficient to bring them into conflict.
10. It is in evidence that the complainant party lived at a distance of about one acre from the place of occurrence while the appellants lived at a distance of 1-1/2 acre from there it would be seen from the above narration that each party has laid blame of aggression on the other. It is a case of two versions and I have considered both versions by placing them in juxtaposition in the light of the evidence on record. The story of the complainant that Ahmad Yar, Gulzar and Shaukat went to plough the land where he had sown wheat crop and that the occurrence took place when they were restrained from doing so, is not acceptable because no documentary evidence showing possession of the complainant party on that piece of land has been produced. Furthermore, had it happened like that then Noor Muhammad deceased would have suffered more injuries than the two injuries seen on his person. Similarly complainant party's version that Mst. Shamim was injured by her brothers (appellants) and that Saif and Sarwar having snatched Lathi from Shaukat caused numerous injuries with that one stick to three persons of accused party is not believable. Again this explanation does not Find place in the F.I.R., so it is also afterthought. Likewise the defence version that Ahmad Yar was ambushed and attacked by complainant party, whereupon he alongwith Gulzar who came to rescue him had caused injuries to them in self--defence cannot be accepted as in that case Ahmad Yar would have been beaten to pulp, before his rescue could arrive. Both parties appear to me to have exaggerated. In view of bitter relationship between parties as discussed above, I find that, they having armed themselves with Dangs had deliberately fought free fight over some trivial issue. Right of private defence was, thus, not available to I any of them.
Furthermore, common intention to kill the deceased on the part of the appellants is also not proved. Each appellant is thus responsible for his own individual act. Gulzar Ahmad and Ahmad Yar appellants had dealt one blow each on the head of the deceased which proved grievous in nature and fatal. Since they did not repeat the blow, therefore, they cannot be held to have intended to kill him. However, it is apparent from the fact that they hit the head of the deceased with Lathi, that they fully knew that by this they were likely to cause death of the deceased. Consequently, I hold both of them guilty under section 304 (Part 11), P.P.C. And sentence them to seven years' R.I. Each.
The sentence of fine is, however, maintained. Their sentence under section 323/34, P.P.C. Is also maintained. Their sentences shall run concurrently. As for Shaukat appellant, he did not cause any injury to the deceased, therefore, he is acquitted from the charge under section 302, P.P.C. And sentence awarded thereunder to him is also set aside. His conviction under section 323, P.P.C. Is maintained but is reduced to the period already undergone. Lie is on bail and is discharged of his bail bonds. The appeal is disposed of m the terms indicated above.
S.A./G-248/L