1. Saifullah Khan and his brother Imdad Khan were sent up for trial by Police Station Kot Nainan, District Sialkot, for an offence under section 302, P.P.C. The learned trial Court vide its judgment, dated 14-4-1985 found Imdad Khan guilty under section 323, P.P.C. And sentenced him to a fine of Rs.200 or in default 15 days' R.I. Saifullah Khan was convicted and sentenced to imprisonment for life and a fine of Rs.5,000 or in default one year's R.I. It was further directed that the fine, if realized, 4/5th of it shall be paid as compensation to the legal heirs of the deceased. Saifullah Khan convict alone has filed an appeal against his conviction. Complainant Azeem Khan has also filed a revision seeking normal penalty of death against Saifullah Khan. Both the matters will be disposed of by this judgment.
2. The prosecution story, in brief, is that about three years before the occurrence daughter of one Haroon Khan (deceased) was married to Saifullah Khan and in exchange sister of Saifullah Khan was married to the son of Haroon Khan. After sometime, both the girls came to the houses of their respective parents and started living there. Said Haroon Khan in order to bring about a reconciliation between the parties went to the village of Saifullah Khan with Azeem Khan and Abdul Haque, P.Ws. On 19-5-1984 they went to the village of the appellant and came to the Haveli of father of the appellant. The co-accused of the appellant, Imdad Khan provided them cots.
2. Thereafter, Imdad Khan took Haroon Khan, deceased and the P.Ws. To his residential house for serving meals. In the meanwhile, Saifullah Khan, appellant came there and hit Haroon Khan on the head with a shoe. Thereafter, all of them left the house and came to the house of Afzal Khan, son- in-law of Azeem Khan, and stayed there for the night.
3. On 20-5-1984 at about 7/8 a.m., the deceased -alongwith his companions started for his village on foot. When they reached near a drain, the appellant and his co-accused came there. Th:: appellant was empty-handed whereas his co---accused was armed with a Sota. They abused Haroon Khan and thereafter Imdad Khan gave a stick blow which landed on the forearm of Haroon Khan. In the meanwhile, Saifullah Khan caught hold of Haroon Khan, his father-in-law, from the neck but on the intervention of P.Ws. He released him, but at the same time caught him from the back and after lifting threw him on the ground. Imdad Khan, thereafter, gave two Sota blows on the buttocks of the deceased. Azeem Khan, P.W. Arranged for a tractor and trolley and took Haroon Khan injured to the Hospital, who expired before he could be given medical treatment.
4. F.I.R. Exh.P.E. Was lodged by Azeem Khan, P.W.5 on 20-5-1984 at 1 p.m. With regard to an occurrence which took place on the same day at 8/9 a.m. It was recorded by Abdul Rashid, S.I. P.W.7, at the Police Station Kot Naman. The distance between the police station and the place of occurrence was about six miles.
5. After the registration of the case, Abdul Rashid, S.I. Went to the Civil Hospital and prepared the injury statement Exh.P.F. And inquest report Exh.P.G. Of the deceased and then sent the dead body for post-mortem examination. He recorded the statements of the witnesses in the hospital. He arrested the accused on 27-5-1984. Imdad Khan P.W. Also got recovered Sota P.5 from his Haveli on 2--6-1984 which was secured vide memo. Exh.P.D. He got the site plan Exh.P.A. Prepared from the Patwari and gave his notes in red ink thereunder. After necessary investigation, he challaned the accused.
6. Dr. Muhammad Sarwar, Medical Officer, Civil Hospital, Shakargarh, P.W.3, conducted the post- mortem examination on the dead body of Haroon Khan on 21-5-1984. He observed the following injuries:- (1)Multiple abrasions and contusions on sides and back of neck.
7. (2)Abrasion 2 c.m. x 1 skin deep on front of right chest 6 c.m. Below right nipple.
8. (3)Abrasion 3 c.m. x 0.5 c.m. x skin deep on outer aspect of right ankle behind lateral malleolus.
9. The prosecution in support of its case produced seven witnesses in all. P.W.1 Muhammad Siddiq, Revenue Patwari, prepared the site plan Exh.P.A. On the pointation of the witnesses in the scale of 40 Karams equal to one inch. Muhammad lqba1, F.C. Police Station Sadar Sialkot, P.W.2, on 20-5- 1984 took the dead body for post-mortem examination and after the same he produced the last worn clothes of the deceased before the Investigating Officer which were secured vide memo.
10. Exh.P.B., which he also signed. Dr. Muhammad Sarwar, P.W.3 conducted the post-mortem examination. Majid Khan, P.W.4 witnessed the recovery of Sota P.5 at the instance of Imdad Khan.
11. The eye-witness account has been furnished by Azeem Khan and Maulvi Abdul Haque, P.Ws. 5 and 6, respectively. The investigation was conducted by Abdul Rashid, P.W.7.
12. At the conclusion of the prosecution evidence, the appellant was examined under section 342, Cr.P.C. Wherein he refuted the prosecution evidence and pleaded innocence. He further stated that on the said date Haroon Khan, deceased, had come to their house in order to take away Mst.
13. Shamim, sister of the appellant who had come to their house because she was not well. He further stated that Mst. Shamim resisted while Haroon Khan, deceased, was dragging her and in this process fell down on the back and injured himself.
14. It is contended by learned counsel for the appellant that the case against the appellant has not been proved at all. Submits that no reliance on the eye--witness account can be placed because their testimony is in conflict with the medical evidence. Asserts that the appellant was empty- handed, therefore, he could not possibly have any intention of committing the murder. The contentions have been opposed by learned counsel for the State.
15. I have heard the learned counsel and perused the record. As far as Azeem Khan and Maulvi Abdul Haque, eye-witnesses are concerned, both of', them are not related to the either side. They have given a consistent eye-witness account. According to them, on the asking of the deceased they had accompanied him to the house of the appellant in order to bring about a reconciliation. Both of them have been cross-examined at length but the prosecution has not been able to bring anything on the record to indicate that they were inimical or interested.
16. As a matter of fact, after going through the statements of both the witnesses, I amconvinced that they were independent witnesses and had no motive to falsely implicate the appellant. The manner in which the occurrence took place, as deposed by them, inspires confidence. The incident could be narrated ill such a' manner only by a person who had witnessed the same. Therefore, I hold that both the witnesses were present and witnessed the occurrence.
17. As far as the contention of the learned counsel for the appellant that even if the entire prosecution evidence is accepted, yet it would not be a case under section 302, P.P.C. Requires consideration. It is prosecution's case that the appellant was empty-handed and he tried to grapple with Haroon Khan, deceased, but on the intervention of the witnesses he released him. Thereafter, the appellant picked him up and threw him on the ground which resulted in the fracture of 7th cervical vertebra and caused death. This would clearly indicate that the appellant could not possibly be saddled with the intention of committing the murder. Therefore, I hold that the prosecution has been able to prove its case beyond any shadow of doubt against the appellant, but the offence falls under section 304, Part 11, P.P.C. As far as the quantum of sentence is concerned, I feel the imprisonment of five years' R.I. Shall adequately meet the ends of justice. The fine imposed by the trial Court is maintained. The appellant shall also be given the benefit of section 382-B, Cr.P.C. The appeal is disposed of in the terms stated above. For the same reasons the criminal revision also fails.
18. M.Y.H./S-477/L