' The validity of the judgment, dated 12-6-1984 pronounced by the learned Sessions Judge, Bahawalnagar, has been assailed in this appeal, who had convicted Muhammad Amin and Muhammad Siddiq appellants under section 302/34 of the P.P.C. And for, in furtherance of their common intention, murdering Qasim Ali of their Mohalla in Fortabbas Town. Both the appellants have been sentenced to imprisonment for life each and a fine of Rs,5,000, each or to suffer one year's R.I. Each in default thereof. They have been directed to pay Rs,5,000 each by way of compensation as envisaged under section 544-A of the Cr.P.C. Or to suffer six months' R.I. Each in default thereof. Their accomplice Jalal Din alias Jalla was, however, acquitted.
2. The facts, which led to the detection of this crime, in substance, are that the appellants and Qasim Ali lived in Diggi Mohalla Fortabbas. Muhammad Arshad, the complainant, had six brothers and they had unauthorisedly constructed their houses on the State land in Diggi Mohalla. The complainant party had a dispute with the accused party regarding the possession of an Ihata one and a half years prior to this incident. Muhammad Amin, who is an employee of F.I.U. Had initiated criminal proceedings against Hakim All and Qasitn Ali, the brothers of the complainant, and their other relatives under section 307 of the P.P.C. That case was cancelled after investigation.
Muhammad Amin had been pestering the complainant party through F.I.U. And they had enmity inter se on that account.
3. On 20-8-1979, at 8-00 a.m. Hakim Ali, the brother of the complainant, was putting earth in his compound presumably to raise its level. In the meantime, Qasim Ali was seen passing through the lane. When Qasim All deceased reached near the house of Sardar near the Chowk, both the appellants and Jalal Din alias Jalla came there while armed with a hatchet each. They held Lalkara that they would not spare Qasim Ali and would settle the matter of the disputed Ihata. The appellants gave blows with their hatchets on the head of Qasim Ali and Jalal Din injured the right flank of Qasim All with his hatchet. The incident was witnessed by the complainant, Hakim All and Imam Din son of Shabrati. After injuring Qasim Ali, the assailants ran away towards their houses.
Qasim Ali was being transported to the hospital and when they neared the hospital, Qasim Ali expired.
4. Muhammad Arshad complainant went to the Police Station Fortabbas and lodged the F.I.R. On the same day at 8-30 a.m. Which was recorded by Safdar Yar Khan S.I. P,W.11. The distance between the spot and the police station is four furlongs.
5. The police went to the spot and collected the blood-stained earth. They prepared the injury statement and the inquest report. The autopsy on the dead body of Qasim All was conducted by Dr. Ajab Khan Afridi P.W.3, who had observed the following injuries on his corpse:-
(1) An incised wound 2.5 c.m. x 1 c.m. x 0.5 c.m. Deep on the frontal region of skull which was 7 c.m.
Above the root of nose.
(2) An incised wound on the left parietal region of skull which was 5 c.m. Above the left ear pinna.
Size of the wound was 7 c.m. x 2 c.m. x going deep into the skull cavity and cutting the skull bone through and through and brain matter was coming out.
(3) An incised wound 2 c.m. x 0.5 c.m. x 0.5 c.m. On the left hip.
6. This Medical Expert has opined that injury No,2 was sufficient to cause death in the ordinary course of nature as it had cut the skull through and through and had injured the memberane and brain. Injuries Nos.1 and 3 were however, declared to be simple in nature.
7. He had also examined Muhammad Siddiq appellant, on the same day, at 8-30 p.m., and had found the following simple injury on his person:- "A lacerated wound 3 c.m. x 0.5 c.m. x 0.25 c.m. On the top of the head."
8. Both the appellants and Jalal Din alias Jalla were arrested on the day of this incident. On 22-8- 1979 Muhammad Amin appellant got recovered his bloodstained hatchet P.6 which was taken into possession vide memo. Exh.P.F. On the same day, Muhammad Siddiq appellant led to the recovery of his blood-stained hatchet P.7 which was secured into a sealed parcel vide memo. Exh.P.G. Jalal Din, the acquitted accused, also got recovered his hatchet, P.8 on the same day. After the completion of the investigation, the challan of the appellants and Jalal Din was submitted. As a sequel to the impugned trial, both the appellants were awarded the aforementioned punishment whereas Jalal Din alias Jalla was acquitted.
9. The learned trial Court has convicted the appellants on the basis of the ocular testimony of Muhammad Arshad P.W.12 and Hakim All P.W.13. The corroboration of their testimonies has been sought from the motive for the commission of this crime, the medical evidence and the recovery of the hatchets.
10. Muhammad Arshad P.W.12, who is the real brother of the deceased and the complainant in this case, has narrated the incident as stated in the F.I.R. He has testified that both the appellants had given head injuries with their hatchets to his brother Qasim Ali. He has also depicted the motive for the commission of this crime. According to him, a criminal case had been registered against them one and a half years prior to this occurrence. It was suggested to this witness that Hakim All was digging earth from the foundation of the wall of the house of Siddiq and, when he was forbidden, he inflicted a Dang blow on the head of Siddiq whereupon Yaseen, the brother of the appellants, picked up a Vehola from the spot and gave injuries to Qasim All in self-defence. He has denied this suggestion. He has clarified that the house of Siddiq accused is sixty or seventy Karams away from the spot.
11. Hakim All P.W.13, who too is the real brother of Qasim Ali deceased, has deposed that they were on inimical terms with the appellants as the appellants had occupied a Ihata owned by Qasim Ali and Amin appellant lodged a case against them under section 307 of the P.P.C. He has stated that he and Arshad were putting earth in the compound of his house when Qasim Ali appeared in the street and, within their view, both the appellants and Jalal Din gave him hatchet blows. He died on his way to the Hospital. He denied the suggestion that they had excavated the earth from the Ihata of Siddiq accused on the day of occurrence.
12. Muhammad Yousaf P.W.7, who is the stamp-vendor, has testified about the recovery of hatchets at the instance of both the appellants when they were in the police custody. According to him, the recoveries were effected at noon time. The story of recovery has been corroborated by Safdar Yar Khan S.I. P.W.11. He has stated that Muhammad Siddiq accused was in an injured state and bloodstained earth was recovered from the north-eastern corner of the Chowk. He denied having interrogated Yaseen alias Bhola as a suspect but, subsequently, he has clarified that he had interrogated Yaseen alias Bhola as an accused as the prosecution branch had raised an objection.
He was also put the suggestion that Qasim was digging earth from underneath the wall of the house of Muhammad Siddiq and, on his objection, Qasim inflicted a Dang blow on the head of Muhammad Siddiq and Yaseen alias Bhola gave hatchet blows to Qasim to defend Siddiq. This suggestion was refuted by this witness.
13. In defence, both the appellants pleaded to be innocent. Muhammad Siddiq appellant, in response to question No,13, has explained as under:- "On the day of occurrence, at 7-30 a.m., Qasim was digging earth from the foundation of the wall of my house. I went there and forbade him from doing so but he hurled filthy abuses at me and assaulted me while armed with a Dang and inflicted a blow hitting my head. I fell down. He was going to give another blow to me whereupon Yaseen, my brother, picked up a Vehola from the spot and inflicted blows to Qasim in self-defence. Amin and Jalal accused were not present there."
14. The statements of the ocular witnesses Muhammad Arshad and Hakim Ali are consistent. They are living in close proximity to the spot and are natural witnesses of this incident. The incident took place in broad daylight in the morning in a chowk and there could be no chance of substitution.
The motive for the commission of this crime is self-evident as both the factions had enmity inter se.
The medical evidence suggests that hatchets were used in murdering Qasim Ali. The recovery of the hatchets also served as a good substitute for convincing corroboration.
15. The injury given to Muhammad Siddiq has not been explained by the prosecution. Muhammad Siddiq appellant also could not explain that after sustaining the said injury, he had gone to the doctor for treatment. He was examined by the doctor at 8-30 p.m. On the same day and there was a chance of fabricating the defence by self-inflicting the injury on the head.
16. The defence put forth by the appellants does not ring true because different suggestions had been put to the prosecution witnesses. In one suggestion, it was pointed out that the earth had been excavated from the Ihata of Muhammad Siddiq appellant and then there was a suggestion that the earth was excavated from the foundation of the wall of the house of Muhammad Siddiq. In the suggestions, Vehola has been introduced and, in one suggestion, this Vehola has been changed into a hatchet.
17. It may be noted that the earth could be obtained from a nearby sand (C dune which is about 10 to 15 Karams away and there was no necessity of going near the house of Muhammad Siddiq to excavate comparatively harder soil at a distance of 70 karams from the spot. If Qasim All was excavating the earth with a spade or Viola then he could not wield a Lathi in injuring Muhammad Siddiq. Yaseen, the brother of the appellants, has not been examined in defense to invigorate this defense. To me, it appears that this defence is nothing more than the figment of the imagination of the appellants which has been fabricated to save their skin. Both the appellants were rightly held guilty and the sentence awarded to them is also appropriate. Both the appellants were released on bail. Muhammad Siddiq appellant is present in person. He should be taken ,into custody forthwith and sent to jail to serve his term of sentence. Muhammad Amin appellant is absent and I was informed that he had gone for some specific purpose of the F.I.U. And has not returned. On his return, he should surrender himself before this Court for being sent to jail. The District Magistrate, Bahawalnagar, is also directed to issue non-bailable warrants of his arrest and, after causing his arrest, should send him to jail to serve his remaining term of sentence under intimation to this Court. A copy of this judgment be sent to the District Magistrate, Bahawalnagar, who may proceed against the sureties of Muhammad Amin in accordance with law to procure his arrest. The benefit of section 382-B, of the Cr.P.C. Is, however, extended to both the appellants. The appeal stands dismissed.