Khushi Muhammad (80), his brother Said Muhammad (60), their sister Said Bibi and Waris A.I (17) son of Khushi Muhammad were tried for the murder of Mst. Barkat Bibi and for causing hurt to Muhammad Suleman and Muhammad Malik P.Ws. By his judgment dated 14-5-1988 the learned Additional Sessions Judge, Sialkot convicted Khushi Muhammad, Waris A.I and Said Muhammad under section 302/34 P.P.C. And sentenced them to imprisonment for life plus a fine of Rs. 10,000 each or in default to undergo further R.I. For two years. Half of the fine was ordered to be paid to the legal heirs of the deceased as compensation. They were also convicted under section 323/34 P.P.C.
For causing hurt to Muhammad Suleman and Muhammad Malik P.Ws and sentenced to three months R.I. Plus a fine of Rs. 200 each or in default to undergo five days' R.I. Each. Both the sentences were ordered to run concurrently. They were also given the benefit of section 382-B Cr.P.C. Mst. Said Bibi was, however, acquitted.
2. The convicted accused have filed this appeal.
3. The prosecution case is that Mst. Sardar Bibi, Said Bibi, Rehmat Bibi, Said Muhammad and Khushi Muhammad appellants, daughters and sons of Sardar Muhammad jointly owned land in village Nanowali. Muhammad Suleman PW.10 had purchased the shares of Mst. Said Bibi, Sardar Bibi, and Rehmat Bibi. The remaining land was on lease with him and he used to cultivate the same. The appellants asked him twice to vacate the land as they wanted to sell it but he refused and told them that he was prepared to purchase the same at higher rate. The appellant threatened the complainant with dire consequences.
4. On 23-10-1987 at about 9. A.M. Muhammad Suleman PW. 10, Muhammad Malik P.W.11, Muhammad Siddique and Khurshid P.Ws (Not produced) were sitting in the house of Muhammad Suleman P.W.
They heard the noise of a tractor from the field on which they rushed in that direction and saw Waris A.I son of Khushi Muhammad appellant ploughing the land under cultivating possession of Muhammad Suleman P.W. Khushi Muhammad appellant armed with a Dang, Said Muhammad armed with a revolver and Mst. Said Bibi empty handed were also present there. The complainant party asked the appellants not to plough their land and to settle the matter amicably but they did not listen to it. Mst. Said Bibi raised a Lalkara whereupon Khushi Muhammad appellant inflicted a Dang blow on the head of Muhammad Malik P.W. Muhammad Suleman P.W. Stepped forward to rescue him but he too was given a stick blow by Khushi Muhammad appellant on the wrist of his left hand. On hearing their hue and cry Mst. Barkat Bibi deceased also reached there and requested the accused not to plough their land. Mst. Said Bibi again raised a Lalkara asking Said Muhammad appellant to fire at her whereupon he (Said Muhammad) fired revolver shot at Mst.
Barkat Bibi hitting her on the chest as a result of which she fell down. Waris A.I appellant also fired some shots. Mst. Barkat Bibi died instantaneously. Muhammad Suleman P.W left for police station and met Bashir Ahmad Bhatti, S.I. PW. 12 at Chowk Budiana where he made statement Exh.PD at about 3.P.M The said statement was sent to police station for formal registration of the case. The S.I.
Proceeded to the spot and prepared injury statement and inquest report of Mst. Barkat Bibi deceased. He picked up two empties P.1/1 2 of .12 bore from the spot and made them into a sealed parcel. He arrested the accused on 23-11-1987. Said Muhammad appellant led to the recovery of revolver P.2. Khushi Muhammad got recovered Dang P.3. Waris A.I appellant led to the recovery of carbine P.4.
5. Dr. Syed Sajid A.I conducted post mortem examination on the dead body of Mst: Barkat Bibi deceased on 24-10-1987 at 10. A.M. And found the following injuries on her body:
(1) Circular wound of 1/3" diameter abraded and inverted margins on front of right side of chest, upper part 3" above and lateral to the right nipple.
(2) Abrasion 1/4" x 1/4" on tip of the nose.
Injury No.1 was grievous and dangerous to life and had been caused by fire arm. Injury No.2 was simple m nature caused by blunt weapon.
Dr. Arif Mahmood PW.2 medically examined Muhammad Suleman and Muhammad Malik P.Ws and found one Simple injury on each of them.
6. The prosecution examined Muhammad Suleman P.W. 10 and Muhammad Malik PW. 11 as eye witnesses. Taj Din PW.6 and S.I. Bashir Ahmad PW.12 were examined to prove the recoveries.
7. At the trial, the accused pleaded not guilty to charge. Khushi Muhammad, Waris A.I and Said Bibi stated that they were not present at the spot at the relevant time. Khushi Muhammad and Waris A.I stated that on the day of occurrence they were at Kharian Cantt, adding that the land in dispute was in their occupation and the complainant party wanted to forcibly occupy it. Said Muhammad appellant stated that Khasra No.302 was in his possession since long as a joint owner. He had constructed a Pacca house and used to live there. The complainant party had trespassed into the said land which led to a scuffle between him, Muhammad Suleman and Muhammad Malik. He hurled brick bats to scare them away. Muhammad Sulenjan P.W. Who was carrying carbine fired 2/3 shots from it. Mst. Barkat Bibi deceased who had per chance stepped forward was hurt by the carbine shot. Khushi Muhammad and Waris A.I examined Sabir Hussain DW.1 in their defence.
According to him both of them had stayed at Kharian Cantt. As guests of Muhammad Boota Naik from 22-10--1987 to 25-10-1987. He also produced certificate Exh. DW1/A issued by Maj. Mumtaz Muhammad Khan in this respect.
8. Relying on the motive and ocular account the learned trial Court convicted and sentenced Khushi Muhammad, Waris A.I and Said Muhammad as described above but acquitted Mst. Said Bibi. Recoveries of the weapons were however, disbelieved.
9. It is contended that the eye witnesses were closely related to the deceased and had been disbelieved in respect of Mst. Said Bibi and should not have been relied on against the appellants without some independent corroboration. It is further stated that the motive was not proved.
Instead of the appellants the complainant party had a motive against the appellants because they wanted to take, forcible possession of the land m dispute. The ocular evidence was in conflict with the medical evidence and further that the plea of alibi advanced by Khushi Muhammad and Waris A.I was not given proper consideration. According to Khadim Hussain Patwari PW.8 land measuring 20 kanals and 10 marlas falling in Khasra Nos. 259, 260, 298, 299, 301 and 302 was in the cultivating possession of Muhammad Suleman and Muhammad Malik P.Ws. Khushi Muhammad and Said Muhammad appellants were owners to the extent of 4/7 shares. Khurshid Bibi sister of Khushi Muhammad and Said Muhammad had sold her share of 20 kanals and 10 marlas to Suleman and the mutation of the said sale had been sanctioned on 11-10-1986. He also admitted that there was a residential Kotha in Khasra No. 302 but he could not say who owned or resided therein.
From the above it stands established that the land in dispute was in the cultivating possession of Muhammad Suleman P.W. This also proves the motive set up by the prosecution that the appellants wanted the complainant party to vacate it. But it would not be out of place to mention here that according to Khadim Hussain Patwari the land was jointly owned by Khushi Muhammad, etc. And there is nothing to indicate that there had been any partition of the land with specific shares of each owner.
10. As regards the occurrence, Muhammad Suleman and Muhammad Malik P.Ws were examined to prove the same. Both of them were injured and the duration of their injuries tallies with that of the deceased. Their presence at the spot cannot thus be doubted.
Learned defence counsel has tried to shatter their evidence by the recovery of a pellet from the wound of the deceased. According to him this fact falsifies their version that Said Muhammad had fired a revolver shot at the deceased. Being illiterate persons they might not have been able to distinguish between a revolver and carbine. Since as per FIR only Said Muhammad was said to carry fire arm, there was no question of any confusion in this respect. This circumstance, therefore, does not materially affect the prosecution case. The acquittal of Mst. Said Bibi had no material bearing on the prosecution case because she was empty handed, and only a proverbial Lalkara had been attributed to her. Both the eye-witnesses have given a consistent and coherent account of occurrence. Muhammad Malik being a nephew of Muhammad Suleman P.W could be expected to be present in his house at the material time. Moreover he is an inured P.W. He has corroborated Muhammad Suleman P.W on all material points. The plea of alibi advanced by Khushi Muhammad and his son Waris A.I was rightly discarded by the learned trial Court because Muhammad Boota Naik, their host at Kharian Cantt. Was not examined. Furthermore the officer who had issued the certificate Exh.DW.1/A was also not examined.
Khushi Muhammad appellant is convicted under section 323 P.P.C. And sentenced to the period of imprisonment already undergone by him plus a fine o Rs.500.00 or in default to undergo one month R.I. For the hurt caused to Muhammad Malik P.W. He, is acquitted of the charge under section 323/34 P.P.C. For causing injuries to Muhammad Suleman P.W. As the same are not characteristic of Dang blow and might have been suffered by a fall or brickbat. The fine, if recovered shall be paid to Muhammad Malik P.W. As compensation. He is acquitted of the charge under section 302/34 P.P.C.
Waris A.I accused is acquitted of the charges, for, he is not alleged to have caused injury to anybody. Moreover, his name does not find mention in the F.I.R.
The appeal is disposed of in the above terms.
S.A.K/207/L