RIAZ AHMAD, J,-- Appellant Talib Hussain alias Goga alongwith his brothers Suleman and Nazar Hussain and his father Abdul Hameed were tried 1-,y the learned Additional Sessions Judge at Faisalabad on the charge under section 302 read with section 34 of the Pakistan Penal Code for having committed the murder of Sadiq A.I deceased.
2. Vide his judgment, the learned Additional Sessions Judge found only the appellant Talib Hussain alias Goga guilty on the said charge, and acquitted the co-accused, namely, Suleman, Nazar Hussain and Abdul Hameed. Accordingly, the appellant Talib Hussain alias Goga was convicted on the aforesaid charge, and was sentenced to death, and to pay a fine of Rs. Five thousand, or in default of the payment of fine, to suffer a term of one year rigorous imprisonment. It was also directed, that in the event of recovery of fine, the same shall be paid as compensation to the heirs of the deceased as compensation under section 544-A, Cr.P.C.
2. Aggrieved by his conviction, the appellant Talib Hussain alias Goga has assailed the same through Criminal Appeal No. 521) of 1985, while the case has also been referred to us under section 374, Cr.P.C. Complainant Fazal Din P.W.8 has also filed a Criminal Revision bearing No. 602 of 1985 against the appellant for the enhancement of the tine and compensation--- This judgment shall dispose of the appeal, the revision and the reference.
3. The unfortunate occurrence resulting into the death of Sadiq A.I deceased took place on 10th of September, 1988 at 9/10 a.m. On the Watt of Killas Nos. 21 and 22 in Chak No. 62/RB situated al a distance of 11 miles from Police Station Khurarianwala. Occurrence was reported by Fazal Din P.W.8 at the police station vide F.I.R. Exh.P.H. Recorded at 3-00 p.m. By S.H.O./Sub---Inspector Ata Muhammad P.W.I0
4. In brief the complainant in the F.I.R. Stated, that he was a resident of Chak No. 62/RB, and was owner of 10 Killas of land in Square No.41. Adjacent to Killa No. 21 owned by the complainant, Killa No.22 was under the cultivation of Abdul Hameed, who had sown Chari and Bajra in the aforesaid Killa. On the western Watt, Abdul Hameed had planted Jantar trees, the branches of which were bending towards Killa No.21 in such a way, that the complainant side faced difficulty in driving the tractor. According to the complainant, four days prior to the occurrence, his son Sadiq A.I deceased while driving the tractor in Killa No. 21 diverted the obstructing branches of Jantar trees towards Killa No.22. The acquitted co-accused Abdul Hameed felt ill of it, and thus, exchange of abuses took place between Abdul Hameed and Sadiq A.I deceased. Muhammad Yaqoob P.W.7 intervened, and pacified Abdul Hameed and the deceased. According to the complainant, Sadiq A.I deceased returned to his home having ploughed the land, but Abdul Hamid re-diverted the branches of Jantar trees towards Killa No. 21. On the fateful day at about 9/10 a.m., the complainant and his son Niamat A.I were digging grass from. An area of about 2/3 Marlas of Killa No. 21--- in which chillies had been sown and his deceased son Sadiq A.I at that time was ploughing tractor in Killa No. 21, where he again noticed the obstruction on the Watt of Killas Nos.21 and 22 created on account of the branches of Jantar trees. The deceased stopped the tractor, and told his nephew Muhammad Yasin P.W.9 to drive the tractor, so that in the meantime, he would divert the branches of the Jantar trees, so that no obstruction was faced in driving the tractor. Whereupon, Muhammad Yasin a nephew of the deceased started driving the tractor, while the deceased started rediverting the branches of Jantar trees towards Killa No.22, when in the meanwhile, the appellant Talib alias Goga reached and having noticed the deceased dealing with the aforesaid branches of the Jantar trees went towards his Dera. So, thereafter, the appellant Talib alias Goga armed with a spear, Suleman armed with a hatchet, Nazar Hussain armed with Sota and Abdul Hameed empty-handed while raising Lalkaras reached there, and told the deceased that he would be taught a lesson for having destroyed the branches of Jantar trees. Appellant Talib alias Goga at once gave a spear blow on the left side of the chest of Sadiq A.I deceased, who after the receipt of the injury, fell on the ground.
The complainant and his son Niamat A.I rushed towards the scene of occurrence, but in the meantime, the appellant, his brothers and his father escaped towards their Dera. Complainant and his son Niamat A.I removed the injured to their Dera, and while they were making arrangements for taking Sadiq A.I deceased to the hospital, he succumbed to his injuries at their Dera.
5. After the registration of the case, the investigation thereof commenced, and the dead body of the deceased Sadiq A.I was sent to the mortuary for post---mortem examination.
6. On 11th of September, 1982 Dr. Muhammad Ajmal Mian P.W.5 conducted the post-mortem examination on the dead body of the deceased, and noticed the following injury on his person:- (1)A stab wound 2 x 3/4 c.m. Chest deep situated on left front of chest 11 O'clock position of left nipple just close to it cutting left chest wall, left pleura, left lung, pericardium and heart at left upper vault directive backward and inward passing through the left third and fourth ribs inter-space. .
Left lung, upper part of the heart were cut. In the opinion of the doctor, the deceased died due to shock and haemorrhage resulting from injury No.1, which was sufficient to cause death in the ordinary course of nature. Injury had been caused with sharp-edged pointed weapon, and was declared grievous in nature.
7. On 13th of September, 1982 the Investigating Officer P.W.10 arrested the appellant, and the acquitted co-accused, and all of them except Abdul Hameed produced heir weapons of offence before the Sub-Inspector Ata Muhammad P.W. : the Investigating Officer.
8. Appellant Talib alias Goga produced blood-stained spear P.3 which was taken into possession vide memo. Exh.P.D. Attested by Muhammad Asghar P.W.4 and one Munir Ahmad (not produced) besides the Investigating Officer P.W.10. The aforesaid spear was sent 'to the Chemical Examiner and the Serologist, vide report of the Serologist Exh.P.M., the spear was found to be stained with human blood.
9. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by, the complainant Fazal Din P.W.8 father of the deceased and Muhammad Yasin P.W.9 a nephew of the deceased, while another son of the complainant P.W.8 viz. Niamat A.I though named in the F.I.R. As an eye-witnesses was given up. In addition to the ocular testimony, the prosecution also placed reliance upon the recovery of blood-stained spear produced by appellant Talib alias Goga before the Investigating Officer.
10. When examined under section 342, Cr.P.C., appellant Talib alias Goga made the following statement:- "The case is false. Actually at the time of the occurrence, I was present in Killa No. 22 which is owned by my father, and I was repairing my Khal. Sadiq A.I deceased was ploughing his land situated in Killa No.21 with tractor, and while ploughing was trespassing into our land. I objected and abused him, upon which Sadiq A.I deceased felt insulted and infuriated. He left the tractor, and brought a spear and attacked me with the spear. I tried to snatch the spear from him, upon which, there was scuffle between Sadiq A.I deceased and myself. Myself and Sadiq A.I deceased were trying to snatch the spear from each other, and in that process, Sadiq A.I deceased got himself injured accidentally with the spear."
11. With the assistance of the learned counsel for the appellant, the State and the complainant, we have gone through the evidence on the record, and we have also heard the various contentions raised by learned counsel at length.
12. It was vehemently contended by the learned counsel for the appellant, that the statement made by the appellant Talib was nearer the truth, and it was in the exercise 'of the right of self- defence, that the appellant had killed the deceased, otherwise, the appellant would not have survived. It was thus contended, that the appellant deserved acquittal, because the right of self- defence had commenced the moment the deceased had brought the spear to attack the appellant with it.
13. We have carefully examined the ocular testimony on the record of this case. Statements of all the witnesses are consistent, and nothing has been brought on the record, so as to infer, that they had not seen the occurrence, and the witnesses were falsely implicating the appellants: Plea in their testimony is further strengthened by the fact, that there was no background of enmity between the parties. It was further contended, that in view of the relationship of the eye--witnesses, their evidence required to be considered cautiously. As already observed earlier, we have minutely examined the inherent worth of the testimony of all the eye-witnesses, and we do not find any flaw therein. Muhammad Yaqoob P.W.7 is from the brotherhood of the complainant. It was further argued, that the prosecution had failed to produce any independent witness so as to lend strength to its case. In our view all the eye-witnesses produced by the prosecution are the most natural witnesses, and know the circumstances of the case, none else could have been present on the spot, because the occurrence hats taken place in the field of the complainant adjoining to the field of the appellants. In this view of the matter, only the complainant, his sons and the accused party could have been present at the spot.
14. An other criticism about the ocular testimony was that the complainant side was owner of the land in four different squares, therefore, all of them could not have been present at the scene of occurrence. We are not convinced with this argument, inasmuch as, in a small village, all the members of a family, work together, and particularly in this case, process of weeding was in progress in the chillies' field. Hence, we are not prepared to believe that the witnesses were neither present, nor had seen the occurrence.
15. Lastly, we advert to the defence plea raised by the appellant. It was contended, that it was improbable, that four persons would have gone to launch an attack on account of insignificant motive, and if at all, appellant Talib had caused any injury, he did not intend to murder, because it was the single blow inflicted by the appellant. Defence version was that in fact an altercation had taken place between the appellant and the deceased, and the latter had brought the spear, and wanted to attack the appellant, and during the scuffle, the spear hit the deceased causing his death. We have carefully examined this plea in the light of the evidence of surrounding circumstances of this case, but we regret to repel it. In the circumstances of this case, the defence plea is devoid of truth, and the same is also improbable in view of the nature of the blood-stained spear. We have examined the length of the spear, and in our view, if the spear is directed by the assailant towards the victim, then in course of a scuffle, its direction could not be diverted, so that it could hit or cause any injury to the assailant. Hence, we are not prepared to believe the defence version, that in course of scuffle, the deceased had received this injury with his own hand. We have vizualized the nature and depth of spear injury inflicted by the appellant, which clearly, shows that it was forceful and had been caused to kill. Accordingly, we find no substance in the plea raised by appellant, and the same is rejected.
16. It may be added here, that we endorse the view taken by the learned trial Judge to hold the appellant only guilty, because in the process of sifting the grains from the chaff, this is the only conclusion which could be arrived at, that it was only the appellant who had caused the fatal blow.
In the absence of any background of enmity, we are further of the view, that it was one and the same occurrence resulting into the death of the deceased. While driving the tractor, re diversion of the branches of Jantar trees on the part of the deceased was resented to, which resulted into their fight, in which, the appellant caused a spear blow to the deceased causing his death. It was not a premeditated murder, and the fight had taken place in the above narrated manner. We are, therefore, of the view, that the case squarely falls within section 302, P.P.C. Because the ocular testimony is corroborated by the recovery of blood-stained spear. We are thus of the view, that the prosecution has brought guilt home to the appellant.
17. Adverting to the quantum of sentence, we are of the view, that this is not a case in which extreme penalty of death should be imposed upon the appellant, because there was no background of enmity, and the affair was quite unpremeditated. Accordingly, we are of the view, that the ends of justice would be met, if the lesser penalty is awarded to the appellant, and thus, we dismiss the appeal preferred by the appellant with the modification that the sentence of death awarded to the appellant is altered into; life imprisonment. Sentence of fine is, however, maintained. In the peculiar circumstances of this case, we would allow the benefit under section 382-B, Cr.P.C. To the appellant. In the terms noted above, appeal preferred by the appellant is dismissed. Reference is answered accordingly. Death sentence is not confirmed
18. Adverting to the revision petition filed by the complainant seeking enhancement of fine and compensation. Notice on behalf of respondent in revision was accepted by Sardar Muhammad Latif Khan Khosa, Advocate for the appellant. After careful consideration of the facts of this case, and after having heard the learned counsel for the complainant and respondent No.1. We are of the view, that a case for the enhancement of fine is made out. Accordingly, in addition to the amount of fine, which has been ordered to be paid as compensation to the heirs of the deceased, we further direct, that respondent No.1 shall pay an other amount of Rs. Ten thousand as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased N.H.Q./T/59/`L Order accordingly